IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DeLONG

:

:

:

V. : C.A.NO. 05-3371

:

:

:

AETNA LIFE INSURANCE

COMPANY

:

MEMORANDUM OPINION AND ORDER

RUFE, J. FEBRUARY 9, 2006

Plaintiff brought this action under the Employee Retirement Insurance Security Act of 1974, 29 U.S.C. section 1001, et seq.,

as amended (“ERISA”), claiming Defendant wrongfully terminated his

long-term disability benefits. Presently before the Court is the Defendant’s motion for summary judgment pursuant to Rule 56(c) of the

Federal Rules of Civil Procedure. For the reasons that follow, the

motion is granted.

Under 56(c), summary judgment may be granted

when,”after considering the record evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 1 of 14
1. Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.

1990).

2. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

3. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986).

4. Fireman’s Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d

Cir. 1982).

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and the moving party is entitled to judgment as a matter of law.” 1

For a dispute to be “genuine,” the evidence must be such that a

reasonable jury could return a verdict for the nonmoving party. 2 If

the moving party establishes the absence of a genuine issue of

material fact, the burden shifts to the nonmoving party to “do more

than simply show that there is some metaphysical doubt as to the

material facts.” 3 The non-moving party may not rely merely upon

bare assertions, conclusory allegations, or suspicions. 4

As the Court finds no genuine disputes as to any material

fact, the Court holds this case is suitable for summary disposition.

Plaintiff was employed at the University of Pennsylvania

(“Penn”) as a Financial Aid Officer when he fell down a flight of

stairs while at work on October 4,1996. That was also the last day

Plaintiff worked. Plaintiff applied for and began receiving long- term

disability benefits under Penn’s employee benefit plan. When Plaintiff

began receiving disability benefits, Penn both funded the plan and

administered the benefits thereunder. Penn continued to serve both

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 2 of 14
5. Exhibit B to Defendant’s Reply Brief in Support of Motion for

Summary Judgment.

6. Id. at Exhibit D.

7. Id. at Exhibit E.

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roles until May 1, 2003 when Penn entered into an agreement with

Defendant whereby Defendant would assume the responsibility of

administering the benefits which includes determining who qualifies

for benefits under the plan, while Penn would only fund the plan. The

terms and conditions of the plan remained the same.

The plan provides that in order to be eligible for long-term

disability benefits, Plaintiff must have demonstrated an inability “to

engage in any occupation appropriate to [Plaintiff] by reason of

education, training and experience.”5 During the six years that Penn

administered the plan, it routinely recertified Plaintiff’s disability

benefits for another year based solely on an annual update from

Plaintiff’s treating physician, Dan Jacobs, D.O. 6 Plaintiff received

long-term disability benefits from April 3, 1997 through August 31,

2004. 

When Defendant began administering claims under Penn’s

plan in 2003, it requested that Dr. Jacobs complete an Attending

Physician Statement regarding Plaintiff’s diagnosis, treatment, and

restrictions and limitations. 7 Dr. Jacobs completed this form on

March 8, 2004, noting that Plaintiff’s primary diagnosis was degenCase 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 3 of 14
8. Id.

9. Id. at Exhibit H.

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erative disc disease, multiple herniations and bulging and spinal

stenosis. Dr. Jacobs indicated that Plaintiff’s secondary diagnosis

was bilateral torn medial meniscus. He described Plaintiff’s condition

as chronic and indicated that Plaintiff would need continuing treatment. Dr Jacobs further indicated that Plaintiff was “unable to sit,

stand or walk more than 15 min. Cannot climb, squat, bend or kneel

due to instability in lumbar spine and both knees.” Dr. Jacobs

opined that Plaintiff’s limitations would be “permanent.” 8

In April 2004, Defendant sent several forms to Plaintiff to

complete and return concerning his disability. Plaintiff completed

only one of these forms, the Claimant Supplemental Statement,

which requested information on how Plaintiff’s physical condition

prevents him from working. Plaintiff stated, inter alia, that: “I am in

pretty constant pain. I can not sit or stand for any length of time,

without contracting more severe pain...” 9 Plaintiff also stated that

he did not know when he would be able to return to part-time work

and that he did not expect to return to full-time work.

Defendant hired an outside corporation, Commercial Index

Bureau, Inc., to conduct surveillance on Plaintiff, which it did on

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 4 of 14
10. Id. at Exhibit I.

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June 15, 2004, June 16, 2004, June 25, 2004 and June 26, 2004.10

No results were obtained on June 15th and June 16th. On June 25th,

Plaintiff was followed as he drove from Philadelphia to a property to

which he is associated in Wildwood, New Jersey. The drive lasted

approximately 90 minutes. 

The results of the video on June 25th showed that Plaintiff

“move[d] about freely, showing no outward signs of disability,

walking to and from his vehicle, bending inside and then walking

back up the steps and returning inside.” The surveillance log for 

June 26th showed Plaintiff sitting on his porch, moving his hands

and arms in frequent gestures. “He did not appear to be wearing any

corrective orthopedic devices, and did not have any walking aids

near-by.” 

The video from June 26th showed Plaintiff standing on his

porch talking to two individuals. According to the log, “[Plaintiff]]

occasionally bent slightly at the waist as he gestured with his hands

to emphasize his speaking. He lifted his left leg and placed his foot on

the arm of the chair in which he had been sitting, leaving his left leg

bent at a 90-degree angle as he stood. He also placed his left arm on

his knee in a resting position. He then lowered his leg and continued

to gesture with his hands, before returning to his seat.” The video

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 5 of 14
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next showed Plaintiff “walk[ing] in a normal fashion to his vehicle. He

did not appear to have any difficulty in walking... He walked back

toward the residence, stepping up onto the curb with his right foot,

and not appearing to have any difficulty in doing so...” 

The video next observed Plaintiff “in a standing position

while appearing to swing his hips from front to back briefly as he

stood with no support.” He then walked to the back of his residence.

Plaintiff was next observed on the second level of a separate building. According to the log, “[Plaintiff] climbed a set of wooden stairs

to the third level... He appeared to move in an easy and uninhibited

manner, and did not use the railing for a large part of his ascent up

the stairway.” Plaintiff was later seen descending the long set of

stairs without using the railing. “He threw his arms out to the side of

his body and did not have any difficulty navigating the stairway to

the second level. He then closed the door to a second level residence,

by leaning to his right, lifting his left leg and placing all of his weight

on his right leg as he also pulled the door closed. He descended the

stairs from the second to the first level of the residence, placing his

left hand on the railing as he came down and slid it along the railing.”

On July 12, 2004, Defendant requested that an investigator from another independent corporation, MJM Investigations, Inc.,

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 6 of 14
11. Exhibit O to Plaintiff’s Response to Defendant’s Motion for

Summary Judgment.

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interview the Plaintiff. The interview took place at Plaintiff’s residence

in Philadelphia on July 12, 2004.11 At this interview, the investigator

observed the following:

The Investigator...observed the Claimant 

through the screen door, rising, one cane in each

hand, in what appeared to be a difficult, offbalance, strenuous manner, from a recliner chair

located near the front door....The Claimant sat

back down in his recliner and laid the one cane

beside him leaning on the chair...He wore...a

brace on his left knee.[Plaintiff stated that] he

suffers from severe back problems including

several herniated disks in his lower back. spinal

stenosis, and degenerative disk diseases. He

expressed bilateral pain and discomfort in his

hips and knees from arthritis. The pain is more

severe in his right hip and left knee. At times, his

knees will `give out.’He has constant pain in his

knees and a burning, aching feeling in his

hips...[Plaintiff] stated that he utilizes one cane

when he is at home but will use two when he

leaves his residence for added support...The

claimant described his limitations as `not being

able to do anything for very long.’ He is able to

walk, stand , ascend and descend steps, and

occasionally bend at the waist but in moderation.

He experiences increased pain when he attempts

to bend at the waist or knees In a standing position he stated he could not lift anything over 10

pounds but in a sitting position could lift more ,

possibly over 20 pounds if just using his arms. He

can’t be on his feet too long and could walk for

maybe 10-15 minutes at a time and maybe take

an occasional walk around the block. [H]e stated

that he needs assistance while traveling and

sometimes fears traveling alone but the Investigator observed the claimant departing the residence

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 7 of 14
12. Id. at Exhibit P.

13. Exhibit J to Defendants Reply Brief.

14. Id.

15. Id. at Exhibit k.

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and operating a vehicle by himself upon an unannounced visit to the residence several weeks ago.

The Claimant also stated that he only uses one

cane when he is at home but will take both with

him when he leaves the residence. However, the

Claimant was observed using both canes when

the Investigator re-visited the residence to conduct the interview. 

On August 2, 2004, Defendant sent Plaintiff a letter stating

that Plaintiff’s long-term benefits would be terminated as of August 31,

2004 because Plaintiff no longer met the definition of disability under

the plan.12 Plaintiff appealed the decision through counsel and on

January 14, 2005, submitted additional medical documents to

Defendant to consider on appeal.13 Defendant informed Plaintiff that it

had referred Plaintiff’s file to an independent medical examiner for a

review of Plaintiff’s residual functional capacity and that counsel would

receive a response by May 7, 2005.14 By letter dated March 2, 2005,

Plaintiff’s counsel submitted more recent medical records from other

physicians. 15

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 8 of 14
16. Exhibit Q to Plaintiff’s Response to Defendant’s Motion for

Summary Judgment.

17. Id. at Exhibit R.

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On March 3, 2005, the independent medical examiner,

Defendant Carl Huff, MD, MPH, FACPM, CIME, submitted his report

and opinion to Defendant.16 Dr. Huff concluded that 

“there is no indication that the claimant has

sustained any neurologic consequence that

would make him functionally disabled to work.

There are many persons with degenerative disc

diseases of the spine who work every day, and in

the absence of neural impingement it would

certainly be feasible for this man to return to a

light level of work, which constitutes occasional

lifting limit of 20 pounds and frequent lifting limit

of 10 pounds with no restrictions on standing,

walking or sitting. Also, his ability to ascend and

descend stairs has already been proven. As far as

his knees are concerned, he does have age related degenerative changes, but this does not

interfere with his ability to walk as clearly demonstrated on the surveillance video.”

On March 4, 2005, Defendant sent Plaintiff’s counsel a letter

stating that Defendant had upheld its decision to terminate Plaintiff’s

long-term disability benefits. 17

Under ERISA, the applicable standard of review for a denial

of benefits pursuant to 29 U.S.C. section 1132 depends on the actual

language in the plan. When a plan grants an administrator discretionary

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 9 of 14
18. Mitchell v. Eastman Kodak Co., 113 F.3d 433, 438-39 (3d Cir.

1997)

19. Since Aetna does not have the dual role as both the entity

that determines who qualifies for benefits and the entity that pays

for those benefits, Judge Becker’s analysis in Pinto v. Reliance

Standard Life Ins. Co. 214 F.3d 377, 387 (3d Cir. 2000) is

inapplicable.

20. Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir.

1993)(internal quotations omitted). 

21. Mitchell, 113 F.3d at 440 (3d Cir. 1997)

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authority, an administrator’s factual finding and plan interpretation are

reviewed under an arbitrary and capricious standard.18

In the case sub judice, the parties agree that the plan vests

discretionary authority in Defendant to decide claims. Accordingly, the

Court must, as a matter of law, review the administrator’s decision to

deny Plaintiff benefits under the deferential arbitrary and capricious

standard.19 An administrator’s decision is arbitrary and capricious

where it is “without reason, unsupported by substantial evidence, or

erroneous as a matter of law.”20 When considering whether an

administrator’s decision was arbitrary and capricious, the Court may

only consider the evidence which was before the plan administrator at

the time of the final decision.21 Provided that the plan administrator’s

decision is rational, the Court is not free to substitute its own judgment

for that of the plan administrator’s in determining the eligibility for plan

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 10 of 14
22. Mitchell, 113 F.3d at 439; Abnathya, 2 F.3d at 45.

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benefits even if the Court disagrees with the decision of the plan

administrator.22

In the case sub judice, the plan administrator was faced with

conflicting evidence concerning Plaintiff’s disability. We find that

Defendant’s decision to terminate Plaintiff’s benefits was based on

Defendant’s determination, supported by an independent medical

evaluation (Dr. Huff) and objective observation (the surveillance video),

that Plaintiff was no longer medically eligible for long-term disability

benefits. Specifically, Dr. Huff opined, after reviewing Plaintiff’s entire

medical history, that “there is no indication that the claimant has

sustained any neurologic consequence that would make him functionally disabled to work.” The surveillance video indicated that Plaintiff’s

physical limitations in no way matched Plaintiff’s description of his

limitations or the opinion of Plaintiff’s treating physician, Dr. Jacobs .

In view of the above, the Court cannot find that the Defendant’s

decision was without reason, unsupported by substantial evidence, or

erroneous as a matter of law. Thus, Defendant’s decision to discontinue

Plaintiff’s benefits was neither arbitrary nor capricious.

Plaintiff contends that the administrator did not give proper

deference to the opinion of Plaintiff’s treating physician that Plaintiff

was “totally disabled.” Plaintiff’s argument would carry some merit if

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 11 of 14
23. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832

(2003).

24. Kosiba v. Merck & Co., 384 F.3d 58, 69 (3d Cir. 2004).

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the case sub judice involved a claim for Social Security disability

benefits. However, the United States Supreme Court has held that

ERISA administrators are not required to defer to doctors who have

treated a claimant over those doctors who have merely reviewed a

claimant’s medical files. 23

Finally, Plaintiff seeks to introduce an additional medical

report from Dr. Jacobs dated April 22, 2005 in an attempt to refute

Defendant’s decision to terminate his benefits. As noted above,

however, our review is strictly limited to the record before the plan

administrator at the time he rendered his decision. The Third Circuit has

noted only two limited situations in which it may be appropriate to

consider evidence outside the administrative record: (1) when outside

evidence is needed to aid the Court in its understanding of the medical

issue involved or (2) when outside evidence is needed to demonstrate

potential biases and conflicts of interest that are not found in the

administrator’s record. 24 Neither of those exceptions applies to Dr.

Jacob’s report, which simply reasserts Dr. Jacob’s opinion that Plaintiff

is totally disabled.

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 12 of 14
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For all the foregoing reasons, summary judgment is entered

in favor of the Defendant and against the Plaintiff.

An appropriate Order follows.

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 13 of 14
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IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DeLONG

:

:

:

V. : C.A.NO. 05-3371

:

:

:

AETNA LIFE INSURANCE

COMPANY

ORDER

AND NOW this 9th day of February, 2006, upon 

consideration of the motion of the Defendant for summary judgment 

[Doc. #8] and all responses thereto, it is hereby ORDERED that:

Defendant’s motion for summary judgment [Doc. 

# 8 ] is GRANTED.

Judgment is ENTERED in favor of the Defendant and 

against the Plaintiff.

The Clerk of Court is DIRECTED to mark this case closed for

statistical purposes.

IT IS SO ORDERED.

 _/s/ CYNTHIA M. RUFE___________________________

CYNTHIA M. RUFE, J.

Case 2:05-cv-03371-CMR Document 12 Filed 02/10/06 Page 14 of 14