1

IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAWRENCE MICHAELS :

 :

Plaintiff, : CIVIL ACTION

 :

vs. : NO. 04-CV-3250

 :

THE EQUITABLE LIFE ASSURANCE :

SOCIETY OF THE UNITED STATES :

EMPLOYEES, MANAGERS, AND AGENTS :

LONG-TERM DISABILITY PLAN :

and : 

AXA FINANCIAL, INC. :

 :

Defendants :

MEMORANDUM AND ORDER

JOYNER, J. October 15, 2007

This civil action is now before the Court for judgment on

the administrative record. For the reasons set forth below,

judgment is entered in favor of Defendants.

FACTUAL BACKGROUND

Pre-Benefits History

On July 12, 1997, Plaintiff, Larry Michaels, sustained a

closed fracture of the midshaft left femur during a horseback

riding accident. Plaintiff underwent surgery and to stabilize

the fracture, a femoral rod was implanted into his femur. 

Shortly thereafter he began treatment for his injury with Dr.

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 1 of 41
The Plan is now known as the Long Term Disability Plan, 1

sponsored by AXA Equitable Life Insurance Company. The Equitable

Life Assurance Society is now known as AXA Equitable Life

Insurance Company; we will refer to it as “Equitable” here.

2

Eric Katz, an orthopedic surgeon. In October, 1997, he started

physical therapy to rehabilitate the leg, which had limited

mobility and restricted motion. In September, 1998, Plaintiff

began treatment for depression with Dr. Aaron Tessler, a

psychiatrist.

As a result of the physical impairments caused by the

injury, Plaintiff was unable to continue many of his duties as a

tax attorney, particularly the travel that job required for

business development and client services. (Vol. I p. 383).

Consequently, he was terminated from that position effective on

December 31, 1998. (Vol. I p. 381). 

In January, 1999, Plaintiff took a new job with Defendant

The Equitable Life Assurance Society (“Equitable”) as an Advanced

Planning Director. Equitable provided short-term and long-term

disability insurance benefits pursuant to The Equitable Life

Assurance Society of the United States Employees, Managers, and

Agents Long Term Disability Plan (“the Plan”). This plan is an 1

employee welfare benefit plan within the meaning of sections 3(1)

and 4 of the Employee Retirement Income Security Act (ERISA), 29

U.S.C. §§1002(1), 1003 (2004). Pursuant to an administrative

services contract with Equitable, Aetna U.S. Healthcare (“Aetna”)

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 2 of 41
The contract, which became effective January 1, 1995, also 2

marked the adoption of a Managed Disability Benefit Plan. Aetna

acted as Plan Administrator until December 31, 2003. MetLife

became Plan Administrator on January 1, 2004.

Although the record does not contain any statement of 3

reasons for the initial grant of benefits, administrator event

notes from May 26, 1999 - the day after Plaintiff filed his claim

- indicate that the claimant’s diagnosis was both “has rod in leg

for femur” and “major depression.” (Vol. I p. 57).

3

was the Plan Administrator at that time. The parties agree that 2

when he began employment with Equitable, Plaintiff received a

copy of the Summary Plan Description (SPD) for the Plan.

Plaintiff ceased work at Equitable in May, 1999 and on May

25, 1999, he filed a claim for, and was granted, disability

benefits. Plaintiff also applied for Social Security Disability

(SSDI) benefits, which he was awarded based on a finding by the

Social Security Administration (SSA) that, as of May 18, 1999, he

was disabled. Plaintiff had already been receiving disability

insurance benefits from his private insurer, UNUM, since April

11, 1998. By letter dated August 3, 1999, Equitable terminated

Plaintiff’s employment contract (Vol. I p. 395), and he has not

worked again since that time.

Grant of Benefits Award and Initial Period of Disability

Aetna approved Plaintiff for short-term disability (STD)

benefits beginning in May, 1999. To help make determinations 3

about the claimant’s ongoing disability and inability to work,

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Aetna required periodic “Managed Disability Statements” from both

Dr. Katz and Dr. Tessler in addition to preexisting medical

records. In a report dated June 6, Dr. Katz had reported that

Plaintiff was experiencing “significant pain” due to his preexisting condition, and that a return-to-work date was unknown. 

(Vol. I p. 271). Dr. Katz’s treatment notes from this time

indicate that, although the fracture had healed, the “long

periods of ambulation and sitting” required by Plaintiff’s job

had aggravated symptoms of pain and discomfort in the left hip. 

(Vol. II p. 084).

Dr. Tessler also submitted managed disability statements, on

July 27 and September 22, 1999. In both reports he diagnosed

Plaintiff with Major depressive disorder, recurrent episodes, and

indicated that symptoms disabling him from his job included

depressed mood, impaired concentration, and decreased energy and

drive. (Vol. I pp. 262-63). Based on the reports of Dr. Katz

and Dr. Tessler, Aetna periodically recertified Plaintiff’s

period of disability. 

In November, 1999, Plaintiff was approved by Aetna for, and

began receiving, long-term disability (LTD) benefits, again

subject to periodic recertification based on updates of the

claimant’s condition. The December 3, 1999 letter informing

Plaintiff of the approval did not indicate the medical basis for

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As the SPD explains, this means that in order to be deemed 4

“totally disabled” under the Plan, the claimant must be “unable

to engage in ‘any gainful occupation’” for which the claimant is,

“or may reasonably become, qualified by education, training or

experience.” (SPD p. 3.6) 

5

awarding benefits. It did, however, indicate that claimants must

be eligible on a month-to-month basis to receive benefits. (Vol.

I p. 397). The letter also noted that if the disability was “the

result of a mental condition,” benefits would be limited to

twenty-four months from the start of benefit payments. (Id.) 

Furthermore, it informed Plaintiff that if he was still eligible

for LTD benefits on May 25, 2001, he would have to satisfy an

“any occupation” definition of disability. (Id.)

4

Both Dr. Katz and Dr. Tessler continued to treat the

Plaintiff and report to Aetna accordingly. Dr. Katz’s treatment

notes continued to indicate that Plaintiff complained of pain and

stiffness in the left hip, and tenderness due to the prominence

of the stabilizing rod in his leg. (Vol. I p. 265). He also

continually noted Plaintiff’s difficulty with ambulation and

persistent tenderness or discomfort due to the prominence of the

stabilizing rod in the leg. (Id.) In notes dated April 26,

2000, Dr. Katz also indicated that Plaintiff had complaints of

difficulty with stair climbing and feelings of being “off

balance.” (Id.)

Plaintiff also continued his therapy with Dr. Tessler on a

regular basis, even while away for several months in California

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 5 of 41
These doctors were selected and contacted by Unival, an 5

independent medical services contractor.

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in early 2000. In a note to Aetna on March 13, 2000, Dr. Tessler

indicated that Plaintiff continued to describe unstable moods in

their phone sessions, and that his diagnosis for Plaintiff was

Bipolar Disorder. (Vol. I p. 254). He also explained that

Plaintiff “clearly has not yet had a significant period of mood

stability.” (Id.).

In June 2000, Aetna arranged for Plaintiff to undergo a

psychological evaluation with Dr. Donald Hiebel, a psychologist,

and an Independent Medical Examination (IME) with Dr. Jerome

Schnitt, a psychiatrist. On June 6, 2000, Plaintiff was 5

evaluated by Dr. Hiebel, who administered a number of tests and

talked to Dr. Tessler about his clinical diagnosis and prognosis. 

In his report, Dr. Hiebel concluded that Plaintiff was “clearly

suffering from a depressive episode,” seemingly Bipolar I

Disorder, compounded by “debilitating anxiety.” (Vol. I p. 249). 

He also determined that Plaintiff’s depression was too severe to

allow him to return to work in his former capacity, notably

because “his mind was his most useful and valuable tool,” and

this tool was “broken.” (Vol. I p. 249). He added, however,

that Plaintiff was “probably” capable of some kind of work,

though he would likely not command anywhere near his previous

income. (Id.). 

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On June 19, 2000, the IME was performed by Dr. Schnitt, who

had met with Plaintiff a few days prior. Dr. Schnitt’s

evaluation was based on that meeting and Dr. Hiebel’s evaluation. 

In his report, Dr. Schnitt confirmed that Plaintiff suffered from

Bipolar Disorder, which “severely debilitated him.” (Vol. I p.

276). Dr. Schnitt reported that, among other limitations,

Plaintiff was “too dysphoric and irritable to be with others” and

suffered from poor concentration, recall, and organization. 

(Id.) He also noted that Plaintiff had lost the cognitive skills

he had previously needed, and concluded that he “cannot work at

any level, in any capacity.” (Id.) 

Based on the reports of Dr. Katz and Dr. Tessler, as well as

the evaluations by Dr. Hiebel and Dr. Schnitt, Aetna continued to

recertify Plaintiff’s LTD benefits on a periodic basis. However,

by letter dated May 29, 2001, Aetna informed Plaintiff that as of

May 26, 2001 - twenty-four months after he began receiving

benefits - his disability benefits had been terminated. 

(Stipulated Facts Ex. B). The letter indicated that the 24-month

limitation on benefits for a disability resulting from a

“mental/nervous condition” applied to Plaintiff’s claim. (Id.) 

Aetna also explained that Plaintiff was entitled to a review of

the decision, and that it would consider any relevant documents

Plaintiff wished to submit. (Id.)

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First Appeal

On July 16, 2001, Plaintiff’s attorney requested a review of

Aetna’s decision, arguing that Plaintiff’s disability did not

“arise from or on account of” a mental condition under the terms

of the Plan, (Vol. I p. 432) and submitted additional information

for Aetna’s consideration (Vol. I pp. 372-413). Aetna’s medical

consultant, Dr. Oyebode Taiwo, reviewed the information in

Plaintiff’s file, including the reports by Dr. Katz, Dr. Tessler,

Dr. Hiebel, and Dr. Schnitt, and the documents recently submitted

by Plaintiff. (Vol. I p. 354). After summarizing both his

physical and mental conditions, Dr. Taiwo concluded that the

“primary health problem preventing [Plaintiff] from gainful

employment is his psychiatric condition,” and that given his

physical limitations, Plaintiff “should be physically capable of

performing sedentary work.” (Vol. I p. 246). By letter dated

November 1, 2001, Aetna informed Plaintiff that, based on a

review of his file and Dr. Taiwo’s evaluation, it was upholding

its termination decision. (Vol. II p. 042). 

Second Appeal

In a letter dated May 23, 2003, Plaintiff’s attorney

requested another review of Aetna’s decision by Equitable’s

Benefits Appeals Committee (BAC), its internal appeals board. 

(Vol. II p. 119). Plaintiff argued that the language in the SPD

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 8 of 41
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regarding the mental condition limitation should apply instead of

that in the Managed Disability Plan, because he had never

received the latter document. (Id.). He then contended that the

disability did not “arise from or on account of” a mental

condition, and that Aetna improperly characterized it as such to

justify termination of benefits. (Id.).

On July 11, 2003, the BAC met to discuss Plaintiff’s appeal

and determined that, while it had sufficient information

regarding his psychiatric disability, it needed more information

regarding his physical condition. (Vol. II p. 139). As a

result, the BAC requested all documents related to Plaintiff’s

application for Social Security disability benefits, as well as

all of Dr. Katz’s treatment notes. (Id.). The Committee also

requested that Aetna arrange an orthopedic IME for Plaintiff to

aid its decision-making process. (Id.).

On October 27, 2003, an orthopedic IME was conducted by Dr.

Robert Geist. Based on his examination of Plaintiff and a review

of Dr. Katz’s office notes, Dr. Geist submitted his evaluation

and a completed Functional Capacity Worksheet. (Vol. II pp. 006-

011). In his report, Dr. Geist noted that Plaintiff had pain in

the hip and groin area with rotation of the hip, but that there

was no rotational deformity and he had full range of motion in

the knee, foot and ankle. (Vol. II p. 007). Along with a

fracture of the left femur and “painful hardware” in the left

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 9 of 41
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leg, Dr. Geist included Plaintiff’s history of depression in his

diagnosis, but stated that it was outside the scope of his

practice to evaluate behavioral or psychiatric diagnoses. (Vol.

II p. 008). He concluded that Plaintiff’s “medical diagnosis is

poor,” that he is unlikely to resume his previous work, and that

Plaintiff “would be eligible, at most, for part-time sedentary

work.” (Id.). He then added that, should he return to work,

Plaintiff would require a job that would allow “alternate sitting

and standing every half hour” and an environmentally-controlled

room. (Id.). In the attached Employability and Impairment

Summary Form, Dr. Geist’s “prognosis for some type of employment”

was indicated as being “pending removal of femoral rod.” (Vol.

II p. 010). 

Dr. Geist also completed a Functional Capacity Worksheet. 

On that form he indicated that Plaintiff could perform sitting,

standing, and walking only occasionally (33% of the day), but

could perform other motions such as hand grasping, manipulation,

and repetitive motion frequently (34-66% of the day). (Vol. II

p. 011). He also indicated that Plaintiff was capable of working

two hours per day. (Id.).

By letter dated April 26, 2004, the BAC informed Plaintiff

that it had denied his appeal and upheld Aetna’s initial decision

to terminate benefits. (Vol. II p. 002). The Committee

indicated that it had considered all of the information in

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 10 of 41
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Aetna’s files, as well as the additional information submitted by

Plaintiff’s attorney and Dr. Geist. It then explained that

Plaintiff was originally disabled due to a mental condition, and

thus could not receive benefits beyond twenty-four months. (Vol.

II p. 004). Based on an assessment of his physical condition,

the BAC concluded that after that period Plaintiff was capable of

performing a sedentary occupation, and thus was not physically

disabled under the “any occupation” definition. (Id.) The

Committee’s letter appeared to base this decision primarily on

Dr. Geist’s report, which it read as stating that Plaintiff would

be able to work under certain circumstances. (Id.). 

 Plaintiff filed this suit on July 9, 2004, alleging that

Defendants had wrongfully denied him benefits in violation of the

terms of the Plan, and that they breached a fiduciary duty to

him. The parties filed cross motions for summary judgment, which

were denied. They then submitted a joint statement of stipulated

facts, and agreed that the Court, sitting without a jury, shall

resolve all disputed issues of fact and legal issues raised, in

consideration of the administrative record and the briefs

submitted by the parties to this point.

DISCUSSION

ERISA Standard of Review

The Plaintiff brings his claim for wrongful denial of

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benefits under 29 U.S.C. § 1132(a)(1)(B) of the Employee

Retirement Income Security Act of 1974 (ERISA), which provides a

federal cause of action for suits “to recover benefits due to [a

beneficiary] 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.” A denial of benefits

challenged under 29 U.S.C. § 1132(a), such as the one challenged

by Plaintiff here, is reviewed de novo, “unless the benefit plan

gives the administrator or fiduciary discretionary authority to

determine eligibility for benefits or to construe the terms of

the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115 (1989). If the plan administrator has such discretionary

authority, a court will defer to his decision, unless it was

“without reason, unsupported by substantial evidence, or

erroneous as a matter of law.” Pinto v. Reliance Standard Life

Ins. Co., 214 F.3d 377, 393 (3d Cir. 2000). Under this

“arbitrary and capricious” standard, “a plan administrator’s

decision will be overturned only if it is clearly not supported

by the evidence in the record or the administrator has failed to

comply with the procedures required by the plan.” Stratton v.

E.I. Dupont DeNemours, 363 F.3d 250, 256 (3d Cir. 2004) (quoting

Orvosh v. Program of Group Ins. For Salaried Employees of

Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir. 2000)). 

“This scope of review is narrow, and the court is not free to

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 12 of 41
The Summary Plan Description distributed to the Plaintiff 6

at the beginning of his employment with Defendant states:

The [Short-Term and Long-Term Disability] Plans will be

administered – and all benefits authorized – by the

Plan Administrator or its agent. The Plan

Administrator, or a designated party, has the

discretionary authority to determine eligibility for

benefits under these Plans. This discretionary

authority includes the right to make all determinations

about the right of any person to receive benefits under

the Plan and to interpret the terms of the Plans.

Plaintiff’s Complaint, Ex. A, p. 3.1

13

substitute its own judgment for that of the [administrator] in

determining eligibility for plan benefits.” Mitchell v. Eastman

Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997). In conducting its

review of the administrator’s decision, a court must look to the

“record as a whole,” which “consists of that evidence that was

before the administrator when he made the decision being

reviewed.” Id. 

The disability plan in question here clearly granted

Defendant authority to interpret the terms of the plan and make

determinations of eligibility for benefits thereunder, and the

Plaintiff has not argued that a de novo standard should be

applied. The arbitrary and capricious standard thus applies, 6

and this court must give deference to the decision of the plan

administrator.

However, in situations where “a benefit plan gives

discretion to an administrator or fiduciary who is operating

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 13 of 41
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under a conflict of interest, that conflict must be weighed as a

factor in determining whether there is an abuse of discretion.” 

Firestone, 489 U.S. at 115. The Third Circuit has indicated

that, where such a conflict exists, a “sliding scale” method is

used to adjust the arbitrary and capricious standard, which

“grants the administrator deference in accordance with the level

of conflict.” Post v. Hartford Ins. Co., No. 05-4927, 2007 WL

2669825, at *4 (3d Cir. Sept. 13, 2007). In determining whether

this heightened standard should apply, courts consider both

structural and procedural factors, any of which can provide the

basis for closer review. Id. First, the structural inquiry

looks into “whether the plan is set up so that the administrator

has strong financial incentives routinely to deny claims in close

cases.” Id. at *6. This is not a “mechanistic test,” but should

focus on “whether the structure of the plan raises concerns about

the administrator’s financial incentive to deny coverage

improperly. Id. Second, courts may examine the administrator’s

actual decision-making “to determine whether there is evidence of

bias” against the claimant, which would give the court “reason to

doubt [the administrator’s] fiduciary neutrality.” Id. If

procedural irregularities in a particular case raise suspicion of

bias, they may call for more penetrating review of the decision. 

Id. The burden of proof is on the claimant to show that the

circumstances call for a heightened standard of review. See

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Kotrosits v. GATX Corp. Non-Contributory Pension Plan for

Salaried Employees, 970 F.2d 1165, 1174 (3d Cir. 2003)(“Where the

sponsor of a plan reserves for the Plan Administrators the

discretion to interpret the plan, anyone urging that the court

disregard that reservation has the burden of showing some reason

to believe the exercise of discretion has been tainted.”);

Schlegel v. Life Ins. Co. of N. America, 269 F. Supp. 2d 612, 617

(E.D.Pa. 2003).

We conclude that the structural and procedural circumstances

present in this case do not call for a heightened form of

arbitrary and capricious review. First, the plan is not

structured in a way that “gives it financial incentives to act

against the participants’ interest.” Id. at *5. While Aetna

administers the plan and makes initial determinations of

eligibility for benefits, it draws benefit payments from an

independent trust that is funded by the employer (Vol. I p.8) and

can only be used for the benefit of plan participants or plan

expenses. In fact, Defendant makes use of a plan very similar to

the one considered in Stratton, which noted that using outside,

independent claims administrators to hear initial claims

“provides the safeguard of neutral evaluation.” Stratton, 363

F.3d at 255. Here, though, benefit payments are not funded by

the employer on a “case-by-case” basis thus the financial

incentive to deny claims is virtually eliminated because “each

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 15 of 41
For example, the Third Circuit has noted that heightened 7

review may be called for when the following irregularities were

present: (1) Reversal of position without additional medical

evidence; (2) self-serving use of physician reports; (3) ignoring

recommendations from staff that benefits be awarded; and (4)

requesting an examination of the claimant even though all

existing evidence indicates disability. See Post, 2007 WL

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dollar avoided” by denying benefits is not necessarily “a dollar

that accrues” to AXA. See id. at 254-55 (holding that only a

“slightly heightened” standard would be used for a plan which

allowed for independent claims evaluation by an outside insurer,

but which was funded on a case-by-case basis). In fact, the

Third Circuit has found that a plan structured like the one here

do not present a conflict that would raise the court’s suspicion. 

See Abnathya v. Hoffmann-LaRoche, Inc., 2 F.3d 40, 45 n. 5 (3d

Cir. 1993). On the whole, then, the structure of the plan here

does not indicate any conflict that would call for closer

scrutiny of the plan administrator’s decision.

Neither is there sufficient evidence of procedural bias in

Aetna’s decision-making here to give the court reason to doubt

its fiduciary neutrality. Plaintiff has made several allegations

of bias and various “procedural irregularities” that could

support an inference of self-interest leading to heightened

review. These assertions, however, do not identify any kind of

inconsistencies in the administration of the plan that have been

identified in this circuit as indicative of bias towards the

claimant.7

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 16 of 41
2669825, at *7 (surveying Third Circuit case law on the issue of

ERISA standard of review).

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Specifically, Plaintiff alleges that, after the initial

denial of benefits effective May 26, 2001, he was not provided

with all “pertinent documents” used in the decision and was not

allowed to submit any new evidence to support his case on appeal. 

These failures, he asserts, constitute evidence of bias on the

part of the Defendant. Plaintiff does not explain, however, how

this demonstrates why Aetna had an improper motivation to deny

his claim or some other self-interested conflict that would raise

the court’s suspicion. Furthermore, as we describe more fully in

addressing his claim of breach of fiduciary duty, Plaintiff

actually took advantage of a fairly robust opportunity to submit

new evidence on appeal.

Plaintiff also alleges that the claims investigator assigned

to his claim, Charlene Archambault, exhibited “hostility” and

“prejudice” that tainted Aetna’s decision to terminate benefits

after 24 months. He points to the language of several internal

emails as evidence of this bias, as well as the fact that the

claims investigator made a Disability SIU (Special Investigation

Unit) Request without any prior evidence of fraud. In sum,

Plaintiff’s assertions amount to an accusation that the claims

investigator’s personal prejudice led her to try to find evidence

to deny his claim.

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 17 of 41
Ms. Archambault also did not spontaneously “recharacterize” 8

the disability as psychologically-based, as Plaintiff suggests. 

In fact, the event notes in the record show that Plaintiff’s

period of disability was recertified at least once (on March 14,

2000) on the basis of his psychological restrictions before Ms.

Archambault even took over Michaels’s claim. (Vol. II p. 313)

18

It is true that closer scrutiny may be required where “the

impartiality of the administrator is called into question” by

evidence of bad faith. Goldstein v. Johnson & Johnson, 251 F.3d

433, 435 (3d Cir. 2001). Here, though, Ms. Archambault’s actions

are not so outside the realm of ordinary disability claims

administration that the court should be suspicious of bad faith. 

The claims investigators notes referring to the psychological

basis for Michaels’s claim are certainly consistent with the

normal administration of his claim, since different provisions of

the plan apply depending on the basis for disability.8

Furthermore, investigating the validity of Plaintiff’s asserted

disability is not an uncommon part of claims administration. 

Continued investigation after confirming the claimant’s status as

disabled would potentially raise suspicion, see Post, 2007 WL

2669825, at *10; however, there is no evidence in the record that

Aetna did so after Michaels was surveilled for two days and even

after the SIU was ordered, Michaels’s disability was recertified

several more times.

Finally, Plaintiff maintains that Equitable “ignored”

certain medical evidence that supported his claim and “distorted”

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 18 of 41
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the record to support its decision. He cites Holzschuh v. UNUM

Life Ins. Co. of America, No. 02-1035, 2002 WL 1609983, at *6

(E.D.Pa. July 18, 2002) and Doyle v. Nationwide Ins. Co., 240 F.

Supp. 2d 328 (E.D. Pa. 2002) in claiming that these actions

warrant heightened scrutiny. This argument, though, again fails

to point to specific evidence of a procedural irregularity that

would give this court pause in deferring to the administrators. 

There is no evidence in the record supporting his claim that

certain evidence (namely, the reports of Dr. Katz and Dr. Geist)

was completely ignored, and in fact the record contradicts that

assertion, as we discuss in greater depth below (discussion of

weight accorded to treating physicians, infra). 

Holzschuh and Doyle presented different factual situations,

and are distinguishable on this point. The court in those cases

found reason to be skeptical where the administrator made

statements about the claimant’s condition that were directly

contradicted by the medical evidence. In Doyle, the court

heightened its scrutiny very slightly because the administrator

ignored a treating physician’s “consistent contrary conclusion”

in more than one report that the claimant was unable to return to

work. Doyle, 240 F. Supp. 2d at 342. And in Holzschuh, the

court found evidence of bias where the administrator used nonexamining physicians’ reports to find that there was no

“objective” evidence of a disabling physical condition, even

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The fact that Plaintiff’s status was “to be determined” 9

seems to be largely due to an indication in the record that he

was scheduled at several points to have the femoral rod removed. 

However, the surgery to remove the rod was never performed.

Dr. Katz noted that Plaintiff’s ability to function in his 10

job had decreased, and seemed to only address Plaintiff’s actual

experiences when he tried to return to work after his leg injury. 

He mentions that Plaintiff continues to have problems with his

hip, but does not express an opinion on his ability to work.

20

though the record was rife with MRI, CT, and x-ray evidence. 

Holzschuh, 2002 WL 1609983 at *6-7. Here, though, Aetna did not

make any such findings that were directly contradicted. Dr.

Katz’s Managed Disability reports, office notes, and progress

statements are vague about Plaintiff’s ability to work. Indeed,

in those forms, Dr. Katz only indicated that Plaintiff’s return

to work was “to be determined” or “unknown.” (Vol. I pp. 266- 9

67, 271). Furthermore, unlike the physician reports in Doyle,

Dr. Katz’s letter in support of Plaintiff’s claim also does not

express a clear opinion on the issue of whether Plaintiff can

engage in any occupation. (Vol. I p. 149). 10

Unlike the records from Dr. Katz, the report from Dr. Geist

does directly address Plaintiff’s ability to work in any

occupation. We do not agree with Plaintiff, however, that the

Equitable BAC “distorted” its conclusions to serve its decision

to terminate benefits. Dr. Geist concluded that Plaintiff would

be unable to resume his previous work, but that he would “be

eligible, at most, for part-time sedentary work.” (Vol. II p.

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We discuss Dr. Geist’s report and its support for the BAC’s 11

decision more fully in Section I.B, infra.

21

008). He reiterated that opinion at the end of his report. (Vol.

II p. 009). As Plaintiff accurately points out, Dr. Geist also

indicated that certain conditions would have to apply to a return

to work, such as limiting periods of sitting and a controlled

climate. (Id.) He did not, however, make contrary statements

that Plaintiff was unable to work at all, and we do not see

evidence of bias in the BAC’s reading of the report in line with

his clearly-stated conclusions.11

In sum, the record does not provide sufficient evidence to

give this court reason to doubt the neutrality of the claims

administrator, who had no structural conflict of interest and

administered the claim consistent with the terms of the plan. 

Accordingly, ordinary arbitrary and capricious review will be

applied here. The decision to deny Plaintiff benefits will only

be set aside if it was “without reason, unsupported by

substantial evidence, or erroneous as a matter of law.” Pinto,

214 F.3d at 393.

ANALYSIS

Count I. Denial of Benefits

A. Termination of Benefits at the End of Twenty-four Months

1. Applicable Plan Terms

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 21 of 41
22

As an initial matter, Plaintiff has disputed which plan

actually governs his claim, pointing to the fact that the 1988

Plan established by Equitable, was the only one initially

provided when he requested a copy of the plan. The record seems

to show that pursuant to the administrative services agreement

between Equitable and Aetna, a new Managed Disability Plan (MDP)

was adopted and scheduled to go into effect on January 1, 1995. 

(Vol. I p. 16). Unlike the “arises from or on account of”

language in the SDP, the MDP states that a period of disability

will end after twenty-four months if Aetna determines the

disability “is, at any time caused to any extent by a mental

condition” described in the DSM. (Vol. I p. 30). 

Plaintiff has not offered any evidence supporting his

implication that the MDP was not formally adopted, nor is there

such evidence in the record. The adoption of the MDP is clearly

contemplated by the 1988 Plan, which explicitly calls for the

Plan Administrator to adopt its own rules and procedures to aid

in administering the Plan. (1988 Plan, Plaintiff’s Complaint Ex.

A, § 6.6). In its letters to Plaintiff regarding both the award

and termination of LTD benefits, Aetna also appeared to be using

the language in the MDP. That said, Plaintiff acknowledged that

he only received the SPD when he became employed with Equitable,

and Defendants have not claimed otherwise. The court then can

only assume that this was the document on which he relied in

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 22 of 41
23

determining his benefits. Thus, to the extent that it differs

from the MDP, we find that the language describing the 24-month

provision in the SDP should govern our review of whether the Plan

Administrator erred in finding that the provision applied to

Plaintiff’s claim for benefits. See Brennan v. Greenwood Trust

Co., 1999 WL 33220028, at *4 (D.Del. February 9, 1999)(relying on

the language in the SDP, rather than the underlying plan, where

the SDP was the only document received by the claimant). This

does not change, however, the “arbitrary and capricious” standard

of review; we still give deference to the Administrator’s

interpretation of the “mental condition” limitation. And as we

explain below, even under the more restrictive language of the

SDP, the decision to terminate benefits based on this provision

was not arbitrary and capricious.

2. Effect of Plaintiff’s Mental Condition

The Summary Plan Description (SPD) provided by Equitable to

Plaintiff specifies: 

“[A] period of total disability will end after 24

months of receiving disability benefits if it is

determined that the disability arises from or on

account of . . . a mental condition described in the

most current edition of the Diagnostic and Statistical

Manual of Mental Disorders, published by the American

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 23 of 41
The forms given to Dr. Tessler by Aetna asked him to list 12

either “Patient’s current signs/symptoms (functional limitations)

which disable from his job” or “Symptoms keeping employee out of

work.”

24

Psychological Association.” 

(SPD p. 3.6). As we have already noted, the Plan gives the

administrator “the right to make all determinations about the

right of any person to receive benefits under the Plan and to

interpret the terms of the Plans.” (SPD p. 3.1). The Plan

administrators were therefore authorized to determine whether

Plaintiff’s disability “[arose] from or on account of” a mental

condition, and to decide whether the 24-month limitation applied

on that basis. 

Because there is substantial evidence in the record to

support Aetna’s determination that Plaintiff’s disability stemmed

from his mental limitations, we find that that determination was

not arbitrary and capricious. Aetna and the Equitable BAC were

faced with an abundance of medical evidence from both Plaintiff’s

treating psychiatrist and outside experts that could support the

inference that mental illness was his primary disabling

condition. The record includes numerous Managed Disability

Statement reports from Dr. Tessler diagnosing Plaintiff with

Bipolar I Disorder and major depression, and listing as

“disabling” symptoms such signs as depressed mood, difficulty 12

concentrating, and impaired organizational abilities. (Vol. I

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 24 of 41
25

pp. 262-64, 268, 170). A July 12, 2001 letter from Dr. Tessler

summarizing Plaintiff’s condition indicates that his ability to

concentrate and to think quickly with facility is impaired, and

he was “unable to sustain the energy, drive or concentration

necessary to work effectively and consistently” at any job. 

(Vol. I p. 389). That letter also appears to attribute

Plaintiff’s failure to work at Equitable in early 1999 to “high

energy states, lack of sleep, grandiose behavior at seminars,

racing thoughts, and anxiety,” which led to a diagnosis of

Bipolar I Disorder. (Id.).

The reports from Dr. Hiebel, Dr. Schnitt, and Dr. Taiwo also

support a finding that Plaintiff’s disability arose from his

psychological condition. Dr. Hiebel noted that Plaintiff’s mind

was his “most useful tool” and that, because of his depression,

this tool was “broken” and prevented him from returning to work. 

(Vol. I p. 249). Dr. Schnitt’s report also opined that

Plaintiff’s “skills are cognitive” and were no longer available

to him. (Vol. I p. 276). Dr. Schnitt concluded that Plaintiff

was “severely debilitated” by his Bipolar Disorder and did not

respond to antidepressants and mood stabilizers. (Id.). He also

noted that Plaintiff was “too dysphoric and irritable to be with

others” and “too humiliated/disorganized to accept/provide

supervision,” and had poor concentration and memory. (Id.). 

Finally, Dr. Taiwo’s report after Plaintiff’s first appeal

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 25 of 41
The record shows that Plaintiff’s mental condition actually 13

did provide the basis for the majority of Aetna’s periodic

approvals of recertification. This began early in Plaintiff’s

period of disability, when he began receiving STD benefits, and

was consistent until the end of the 24-month period. 

Administrator event notes do indicate that two periods of

recertification - on June 3 and July 22, 1999 - were based on

previously submitted information from Dr. Katz. But the

remaining certifications of STD benefits appear to have been

based on the symptoms of Plaintiff’s mental illness, as confirmed

by Dr. Tessler’s reports. On August 16, 1999, the administrator

26

provides further evidence to support Aetna’s decision. After

considering all the relevant medical information - both

psychiatric and orthopedic - he concluded that “the primary

health problem preventing [Plaintiff] from gainful employment is

his psychiatric condition.” (Vol. I p. 246). 

All of these findings together could lead a reasonable

person to conclude that Plaintiff’s mental illness on its own

prevented him from working due to disability. To be sure, the

record also contains evidence regarding the impact of Plaintiff’s

physical limitations, specifically the reports of Dr. Katz and

Dr. Geist. However, we “may not substitute [our] own judgment

for that of plan administrators” under the arbitrary and

capricious standard, Stratton, 363 F.3d at 256, and need only

find that there was substantial evidence to support the

administrator’s decision here. Because such evidence exists to

support a finding that Plaintiff’s disability “arose from” or on

account of his mental condition, Aetna’s decision to apply the

24-month limitation was not arbitrary and capricious.13

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 26 of 41
event notes indicate Plaintiff was recertified for thirty-eight

days “per [employee’s] inability to perform job functions due to

. . . depression, difficulty concentrating, diminished

organization, decreased energy.” (Vol. II p. 319). Aetna then

recertified Plaintiff for another seventy-seven days - after

Plaintiff had requested an extended certification - based on

“[the employee’s] inability to perform job functions due to

impaired concentration[,] decreased drive and energy[, and]

depressed mood.” (Id.) Thus, Plaintiff’s allegation that Aetna

“recharacterized” his disability as psychological at the end of

the 24-month period is not supported in the record.

27

Plaintiff makes several arguments in contending that Aetna

should not have terminated his benefits after twenty-four months

under the “mental condition” limitation. 

First, Plaintiff argues that he was not told that his

disability was classified as “mental,” and that this is evidence

of Aetna’s attempt to recharacterize his disability as such to

cut off benefits towards the end of the 24-month period. 

However, though Aetna was not explicit in explaining the

particular reasons for its grant of LTD benefits, Plaintiff must

have been aware that his psychological condition provided some

basis for the certification of his period of total disability. 

Aetna included in its letter granting LTD benefits the language

of the 24-month limitation and indicated that it may apply to

him. The record shows that Plaintiff was also well aware that

Dr. Tessler, his psychiatrist, was submitting completed Managed

Disability statements regularly based on his observations in

their sessions. Furthermore, event notes from various points

over the two-year period show that Aetna administrators often had

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 27 of 41
Plaintiff suggests that the Third Circuit decided this 14

issue in his favor in Lemaire v. Hartford Life and Accident Ins.

Co., 69 Fed. Appx. 88 (3d Cir. 2003), which upheld an award of

summary judgment for a claimant who asserted that a similar 24-

month “mental/nervous” limitation should not have applied because

his depression was secondary to his Hepatitis C and Chronic

Fatigue Syndrome. The District Court had ruled that there was

not substantial evidence to support the defendant’s conclusion

that depression was the claimant’s primary disabling condition. 

In its nonprecedential opinion, however, the Third Circuit

explained that the District Court’s grant of summary judgment

“rested upon its finding that Hartford’s determination that the

evidence of depression was ‘objective’ and that the evidence of

physical disability was ‘not objective’ lacked both logic and

support in the record.” Id. at 92. The court, applying a

heightened standard of review, held only that it was arbitrary

and capricious to require “‘objective’ medical evidence to

establish the etiology of chronic fatigue syndrome, which is

defined by the absence of objective medical evidence.” Id. The

Third Circuit thus has not directly ruled on the issue and,

unlike the administrator in Lemaire, Aetna and the BAC did not

28

Plaintiff’s help in getting those forms to Dr. Tessler. (see

Vol. II pp. 295, 312, 320). Those notes also indicate that

Plaintiff informed Aetna that he had left work two years earlier

“with depression problems.” (Vol. II p. 320) Plaintiff’s claim

that he believed his disability to be based solely on physical

impairments is thus contradicted by the record, and does not

affect our evaluation of the evidence supporting Aetna’s decision

to terminate benefits.

Second, Plaintiff also contends that the 24-month limitation

in the Plan should not have been applied to his period of

disability because the “precipitating cause” of his disabling

mental condition was a physical injury. The Third Circuit has

not directly addressed this issue, but many other courts have 14

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 28 of 41
place a similarly “impossible hurdle” in the way of Plaintiff’s

proving his physical disability.

29

upheld the application of similar 24-month limitations where the

claimant’s disability was based on a mental condition that may

have had a physical symptom or cause. See, e.g., Fuller v. J.P.

Morgan & Co., 423 F.3d 104 (2d Cir. 2005) (upholding application

of a 24-month “mental disability” limitation and holding that

whether the claimant’s disability “arises from” a mental disorder

is “a question quite distinct from whether the disorder itself

arises from a physical cause”); Tolson v. Avondale Industries,

Inc., 141 F.3d 604, 610 (5th Cir. 1998)(upholding application of

24-month limitation to disability based on depression that itself

was a product of either pathological disease or the medication

used to treat it); Pelletier v. Fleet Fin. Group, No. 99-245-B,

2000 WL 1513711, at *4-5 (D.N.H. Sept. 19, 2000)(noting the term

“mental illness” is “properly applied to disorders typically

identified as ‘mental,’ irrespective of their causes”). We agree

with those courts and find that Aetna and the Equitable BAC did

not err in interpreting the terms of the plan to distinguish

Plaintiff’s mental condition from any “precipitating” physical

cause. Plaintiff’s diagnosed bipolar disorder and depression are

certainly “mental conditions” described by the American

Psychological Association in the most current edition of the

Diagnostic and Statistical Manual of Mental Disorders (DSM-IV);

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 29 of 41
The plan document defines “reasonable occupation” as “any 15

gainful activity for which you are, or may reasonably become,

fitted by education, training or experience.” (Vol. I p. 41)

30

that the mental conditions were caused by a physical injury does

not change that fact. See Tolson, 141 F.3d at 610. Accordingly,

the administrator’s decision to apply the limitation to

Plaintiff’s case was within the terms of the plan, and was not

arbitrary and capricious.

B. Denial of benefits based on “any occupation” determination

Under the terms of the Plan, after the first 24 months of a

certified period of total disability, a beneficiary will continue

to be deemed “disabled” only if he is “not able, solely because

of disease or injury, to work at any reasonable occupation.”15

Because a period of total disability based on a disability

“aris[ing] from or on account of a condition related to . . . a

mental condition” cannot extend beyond 24 months, though,

Plaintiff would have only been entitled to recertification of the

period of disability if he satisfied the “any occupation”

definition based solely on his physical condition. To aid in

this determination, after Plaintiff’s second appeal the Equitable

BAC ordered an orthopedic Independent Medical Examination, which

was conducted on October 27, 2003, by Dr. Robert Geist.

We find that the determination that Plaintiff could engage

in “any reasonable occupation,” as it is defined in the plan, is

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 30 of 41
31

not “clearly unsupported” in the record. Both Dr. Geist’s and

Dr. Taiwo’s reports conclude that Plaintiff would be able to

engage in at least some sedentary work. Dr. Taiwo, Aetna’s

Consulting Disability Medical Director, examined the medical

evidence in Plaintiff’s file, including the reports and office

notes submitted by Dr. Katz. He concluded that “given Mr.

Michaels’ [sic] physical limitations, he should be physically

capable of sedentary work,” subject to certain limitations such

as a setting that “would allow him to alter his position

frequently.” (Vol. I p. 246). 

Dr. Geist, who actually examined Plaintiff as part of the

IME ordered at the Equitable BAC’s request, provided an opinion

consistent with Dr. Taiwo’s. He concluded that Plaintiff “is

capable of performing, at most, short-term sedentary occupation,” 

subject to limitations of alternating sitting and standing, and

an environmentally-controlled environment. (Vol. II p. 009). 

When asked by the BAC to clarify the limitations in the report,

Dr. Geist explained that Plaintiff would be able to sit for

thirty to sixty minutes at a time. (Vol. II p. 012). He further

clarified that with respect to the “environmental control,”

Plaintiff exhibited cold intolerance but that “[i]f such a room

were available, then certainly a work trial would be reasonable

as long as the restrictions matched the already supplied work

restrictions.” (Vol. II p. 013).

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 31 of 41
32

Furthermore, the record does not contain the opinions of any

medical professionals stating that Plaintiff definitely could not

engage in “any occupation” in May 2001 and afterwards. As we

have already noted, the reports from Plaintiff’s treating

physician, Dr. Katz, note his physical impairments but fail to

provide any opinions on whether he could engage in “any” work. 

Thus, given that the evidence in the record from Dr. Katz does

not appear to contradict the opinions of Dr. Taiwo and Dr. Geist,

we cannot say that the Administrator’s decision to terminate

benefits was “clearly unsupported” by the record.

Plaintiff makes several arguments in contending that

Defendant was arbitrary and capricious in failing to recertify

his period of disability based on his readings of Dr. Katz’s and

Dr. Geist’s reports. 

First, Plaintiff has suggested that the decision to deny him

continuing LTD benefits was arbitrary and capricious because

Aetna and the Equitable BAC selectively read or ignored the

records from Dr. Katz (his treating physician). These were not

the only sources of medical evidence considered by Aetna and the

BAC, however. Thus, given our deferential standard of review,

the real issue raised by Plaintiff’s argument is whether it was

arbitrary and capricious to accord more weight to the opinions of

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 32 of 41
33

nontreating physicians that Plaintiff was able to perform “any

reasonable occupation.” 

The Supreme Court has held that “[p]lan administrators are

not obliged to accord special deference to the opinions of

treating physicians.” Black & Decker Disability Plan v. Nord,

538 U.S. 822, 825 (2003). Administrators “may not arbitrarily

refuse to credit a claimant’s reliable evidence, including the

opinions of a treating physician.” Id. at 834. However, “courts

have no warrant to require administrators automatically to accord

special weight to the opinions of a claimant’s physician; nor may

courts impose on plan administrators a discrete burden of

explanation when they credit reliable evidence that conflicts

with a treating physician’s evaluation.” Id. Furthermore, this

court has explicitly held that a Plan Administrator’s “reliance

on its own retained medical consultant’s opinions, as opposed to

the claimant’s treating physician’s opinions,” is not arbitrary

and capricious. Brandeburg v. Corning Inc. Pension Plan for

Hourly Employees, No. 04-1314, 2006 WL 2136481, at *2 (E.D.Pa.

July 28, 2006), aff’d No. 06-3755, WL 2030267 (3d Cir. July 16,

2007); See also Schlegel, 269 F. Supp. 2d at 627-28 (noting that

reliance only on written opinions of independent experts was not

arbitrary and capricious if allowed by the plan). 

Here, neither the plan document nor the SPD received by the

Plaintiff mandate reliance on the treating physician’s opinion or

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 33 of 41
34

other discrete sources. The terms of the plan expressively give

the administrator the right to “examine and evaluate” the

claimant, and to require him to submit copies of any documents in

support of the claim (1995 Plan Document, Vol. I. p. 36; SPD, p.

3.18). The plan thus contemplates - and authorizes - a broader

assessment of the medical evidence, and Aetna and the Equitable

BAC were thus entitled to consider all the evidence and give each

source the weight it saw fit, provided there was substantial

evidence for their decisions.

There is no evidence in the record indicating that either

Aetna or the BAC “arbitrarily refused to credit” the reports of

Dr. Katz or Dr. Geist. To the contrary, Dr. Taiwo indicated in

his review of Plaintiff’s case that he reviewed the information

supplied by Dr. Katz about Plaintiff’s physical impairments. 

(Vol. I p. 244-45). And in the BAC’s letter denying Plaintiff’s

second appeal, the Committee stated that its decision made use of

Dr. Geist’s IME report. (Vol. II, p. 004). In fact, the reports

of Dr. Taiwo and Dr. Geist appear to take into account the

physical limitations documented in Dr. Katz’s reports and notes,

but go on to provide what Dr. Katz does not - that is, express an

opinion about Plaintiff’s ability to do “any” work. Accordingly,

Defendant was not arbitrary and capricious in failing to utilize

the reports from Dr. Katz and Dr. Geist to the claimant’s

advantage.

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 34 of 41
35

Second, Plaintiff suggests that the plan administrators

failed to properly consider the Social Security Administration’s

finding that he was entitled to SSDI benefits. “The decision of

the SSA may be considered as a factor in evaluating whether a

plan administrator has acted arbitrarily and capriciously in

reviewing a plaintiff’s claim.” Marciniak v. Prudential Fin.

Ins. Co. of Am., 184 Fed. Appx. 266, 269 (3d Cir. 2006)(emphasis

added)(citing Dorsey v. Provident Life & Accident Ins. Co., 167

F. Supp. 2d 846, 856 n.11 (E.D. Pa. 2001)). Indeed, this court

has suggested in the past that an SSA determination should be

considered in the final benefits decision. See id.; Byrd v.

Reliance Standard Life Ins. Co., No. 04-2339, 2004 WL 2823228, at

*4 (E.D. Pa. Dec. 7, 2004). But a Social Security award “does

not in itself indicate that an administrator’s decision was

arbitrary and capricious, and a plan administrator is not bound

by the SSA decision.” McCaughan v. Bayer Corp., 2007 WL 906267,

at *8 (W.D. Pa. 2007); see also Dorsey, 167 F. Supp. 2d at 856

n.11. 

Plaintiff contends, based on Klimas v. Connecticut Gen’l

Life Ins. Co., No. 04-5408, 2005 WL 2994710 (E.D. Pa. Aug. 17,

2005), that the Plan improperly failed to take the SSA’s finding

of disability into consideration. However, the record belies

this assertion. The record shows that the BAC requested - and

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 35 of 41
Perhaps the most important difference for this particular 16

case is that Plaintiff’s SSA documents indicate that his

application for, and award of, SSDI benefits was based on both

physical and psychological impairments. Thus, the SSA’s decision

to grant benefits would have been of limited use in determining

whether Plaintiff’s period of disability under the Plan should be

continued based on his physical restrictions alone.

36

Plaintiff provided - documents related to his application for

SSDI benefits. (Vol. II, pp. 125, 162). In its letter informing

Plaintiff of the decision to uphold Aetna’s termination of

benefits, the BAC indicated that it had considered all of the

information submitted to it by the Plaintiff. (Vol. II, p. 004). 

Defendant’s final decision to uphold the termination of benefits

in spite of the evidence of the SSA’s decision, particularly in

light of the “critical differences between the Social Security

disability program and ERISA benefit plans,” Black & Decker, 538

U.S. at 832, is not arbitrary and capricious.16

Count II. Breach of Fiduciary Duty

Plaintiff has also alleged that Defendant AXA breached its

fiduciary duty to him. Specifically, he claims that AXA did not

provide notice that its decision would be made using the “any

occupation” definition, and did not allow him to submit

information “directed to the application of that definition” in

his case (Complaint p. 5). 

As an initial matter, Plaintiff’s assertion that he was not

given notice that the “any occupation” definition would be used

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 36 of 41
37

is thoroughly contradicted by the record. The Summary Plan

Description clearly explains that, after the first two years of

the employee’s period of disability, “total disability” will be

defined as being “unable to engage in any gainful occupation for

which you are, or may reasonably become, qualified by education,

training or experience . . . .” (SPD, Complaint Ex. A-1, p.

3.6). Plaintiff stipulated that he received the SPD containing

this provision when he began employment with AXA Equitable. 

(Joint Statement of Stipulated Facts, Para. 10) Plaintiff also

admits that he was apprised of the “any occupation standard” in

Aetna’s December 3, 1999, letter to him granting long-term

disability benefits. (Plaintiff’s MSJ p. 17). After noting that

the “usual occupation” standard would apply for the first 24

months of benefits, that letter clearly states: “If you are

still eligible for long term disability benefits on May 25, 2001,

it will be necessary for you to meet a more stringent ‘any

occupation’ definition of disability.” (Vol. I p. 399). 

Plaintiff cannot seriously contend that this did not provide

adequate notice of the changing definition of disability.

The record also controverts Plaintiff’s assertion that he

was not given an opportunity to present new evidence directed at

the “any occupation” definition. The record shows that after

Plaintiff requested an appeal of the initial termination

decision, Aetna contacted his attorney twice with letters

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 37 of 41
The minutes of the Equitable BAC meeting regarding 17

Michaels’s status also indicate that they received additional

information from his attorney on August 5, 2003, August 18, 2003,

and September 16, 2003. (Vol. II p. 017).

38

requesting “any new, relevant information pertaining to Mr.

Michaels’ physical disability condition.” (Vol. I pp. 430, 431). 

Plaintiff had three months between these letters sent in August,

2001, and Aetna’s decision in November, 2001, to provide such

pertinent information. Furthermore, in response to Plaintiff’s

second appeal, Equitable’s Benefits Appeals Committee sent a

letter to Plaintiff’s attorney stating that they “would like to

obtain additional information concerning [Plaintiff’s] orthopedic

problem as it relates to his appeal under the [LTD] Plan.” (Vol.

II p. 125).

Indeed, it appears that Plaintiff actually did submit such

information. The “Appeal File” portion of the record includes

over forty pages of medical documents and correspondence under

the heading “Info Attorney Submitted,” (Vol. I pp. 372-415) as

well as documents from his treating physician and application for

social security benefits (which only Plaintiff himself could have

provided). Again, the record shows Plaintiff’s assertions to 17

be utterly baseless.

However, even if his allegations had support in the record,

and even if those allegations could be construed as a

misrepresentation constituting breach of fiduciary duty,

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 38 of 41
39

Plaintiff would not have a separate remedy for it here. Count II

of Plaintiff’s complaint can only be construed as a claim for

relief under 29 U.S.C. § 1132(a)(3), which the Supreme Court has

interpreted to provide a remedy for individual beneficiaries for

breach of fiduciary duty. See Varity Corp. v. Howe, 516 U.S. 489

(1996). In Varity, the Supreme Court explained that “where

Congress elsewhere provided adequate relief for a beneficiary’s

injury, there will likely be no need for further equitable

relief, in which case such relief normally would not be

‘appropriate.’” Id. at 515. Here, the relief sought by Plaintiff

for the alleged breach of fiduciary duty is essentially identical

to that sought for his claim of wrongful denial of benefits under

29 U.S.C. § 1132(a)(1)(B). Because that provision provides

“adequate relief” for Plaintiff’s alleged injury of wrongfullydenied benefits, according relief under section 1132(a)(3) would

be inappropriate. See Ream v. Frey, 107 F.3d 147, 152 (3d Cir.

1997)(“[W]here Congress otherwise has provided for appropriate

relief for the injury suffered by the beneficiary, further

equitable relief ought not to be provided.”) Accordingly,

Plaintiff’s claim for breach of fiduciary duty under ERISA must

be denied.

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 39 of 41
40

CONCLUSION

For the foregoing reasons, Plaintiff’s request for relief

under ERISA, 29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(2), must be

denied. Accordingly, judgment will be entered in favor of

Defendants. An order follows.

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 40 of 41
IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAWRENCE MICHAELS :

 :

Plaintiff, : CIVIL ACTION

 :

vs. : NO. 04-CV-3250

 :

THE EQUITABLE LIFE ASSURANCE :

SOCIETY OF THE UNITED STATES :

EMPLOYEES, MANAGERS, AND AGENTS :

LONG-TERM DISABILITY PLAN :

and : 

AXA FINANCIAL, INC. :

 :

Defendants :

ORDER

AND NOW, this 15th day of October, 2007, upon

consideration of the administrative record, for the reasons

stated in the accompanying Memorandum, it is hereby ORDERED that

Defendants’ denial of Long Term Disability benefits is AFFIRMED

and Plaintiff’s claim for relief under the Employee Retirement

Income Security Act of 1974 is DENIED.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J. 

Case 2:04-cv-03250-JCJ Document 34 Filed 10/16/07 Page 41 of 41