UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANDREW MAIDEN, )

 )

Plaintiff, )

 )

v. ) Cause No. 3:14-cv-901

 )

AETNA LIFE INSURANCE COMPANY )

and EVONIK CORPORATION LONG )

TERM DISABILITY GROUP POLICY, )

 )

Defendants. )

OPINION AND ORDER

Andrew Maiden was a lab technician for Evonik Corporation for twenty-five

years when he allegedly became disabled by physical and mental health issues. As an

employee, Maiden was covered by Evonik’s Long Term Disability Group Policy, which

guaranteed long term disability benefits and waiver of life insurance premium benefits

if an employee became disabled. (See generally DE 27-12; DE 27-9 at 35–89.1) Maiden

applied for benefits, but Aetna Life Insurance Company denied his claim and a

subsequent appeal. Maiden brought this case against Aetna and the plan under the

Employee Retirement Income Security Act, challenging Aetna’s decision. The matter is

before me on cross motions for summary judgment.

Background 

In September 2012, Mr. Maiden alleges that he was forced to stop working as a

1 Pin cites are to the page numbers assigned by the CM/ECF system.

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lab technician for Evonik due to the debilitating effects of spinal stenosis, arthritis,

diabetes, sleep apnea, and bipolar disorder. A few months later, in early 2013, Maiden

applied for long term disability (“LTD”) benefits under the plan, which provided the

following test of disability:

In the first 24 months of your disability you meet the test of

disability on any day that: 

• You cannot perform the material duties of your own

occupation solely because of an illness, injury or disabling

pregnancy-related [sic]; and

• Your work earnings are 80% or less of your adjusted

predisability earnings.

(DE 27-8 at 95–96; DE 27-3 at 20; DE 27-12 at 8.) 

On May 30, 2013, after reviewing information submitted by Maiden and his

health care providers, Aetna denied Maiden’s LTD claim. (DE 27-3 at 30–32.) In the

denial letter, Aetna said it had reviewed Maiden’s “claim for both a physical and mental

health impairment” but that “the medical records we have received at this time . . . do

not support your claim of impairment from a physical or mental health condition(s).”

(Id. at 31.) The letter stated that Maiden’s medical records regarding his physical health

“did not . . . provide any diagnostic testing that would support your claim of

impairment” or “provide any restrictions or limitations to support your claim[.]” (Id.) It

also indicated that mental health records Maiden submitted did not “support an

impairment due to a mental health condition[,]” in part because Maiden’s therapist

stated that Maiden’s “disability was due to a physical condition.” (Id.) Finally, the letter

listed examples of additional materials Maiden might submit to support his claim. (Id.)

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Maiden then began submitting additional medical records and other support

from his doctors and his mental health service providers. Aetna reviewed the materials

on a rolling basis and periodically notified Maiden that his LTD claim remained denied

—first in a letter on July 10, 2013 (see DE 27-3 at 34–35), then again on September 16,

2013 (DE 27-3 at 36–37), and finally, on October 18, 2013 (DE 27-3 at 54–55). Each of

these three subsequent letters from Aetna gave the same list of additional support

Maiden might submit as the initial letter, modified to include information about

psychological issues (additions shown below in italics):

• a detailed narrative report for the period of 9/12/2012

through present, outlining [the] specific physical and/or

mental limitations & restrictions inherent to your condition

which your doctor has placed on you as far as gainful

activity is concerned, specifically, cognitive impairments along

with exam findings that substantiate that you are cognitively

impaired; 

• physician’s prognosis including current course of treatment,

frequency of visits, specific medications prescribed;

• copies of diagnostic studies . . . such as MRI, CT, or

EMG/NCS that would correlate with your symptoms of

thoracic back pain, and/or specific symptoms associated with the

diagnosis of Bipolar Disorder . . . [such as] mood lability,

pressured speech, psychomotor impairments, or poor

concentration. Any other behavioral impairments that would

preclude work could also be submitted;

• any documents or information specific to the condition(s)

for which you are claiming total disability, and which

would assist in the evaluation of your disability status;

• any other information or documentation you believe may

assist us in reviewing your claim.

(Id. at 35, 37, 55 (emphasis added); see also id. at 31.) 

The July 2013, September 2013, and October 2013 letters did not specify whether

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the additional records submitted by Maiden had resolved any of the shortcomings

identified by Aetna or specify why Maiden’s evidence continued to be insufficient. (Id.

at 34–37, 54–55.) Instead, they merely stated that “[a]lthough you have provided

additional medical documentation for consideration of LTD benefits, this information

does not support you [sic] are disabled and your claim remains terminated.” (Id. at

34–37, 54–55.)

Maiden appealed Aetna’s denial, and, although the record is not perfectly clear,

at a minimum, it appears that Maiden submitted records from his primary care

physician (Dr. Becker), a therapist (Dr. DeVault), a pain management specialist (Dr.

Siddiqui), a neurologist (Dr. Reibold), a surgeon (Dr. Gorup), and a psychiatrist (Dr.

Buonanno), in support of his appeal. (See generally DE 27-7 at 38–39.) 

In response, Aetna provided Maiden’s file to two “independent” consultants.

(See DE 27-3 at 87–92, 95–99.) I put quotations marks around the word “independent”

because one might reasonably wonder just how independent the reviewers—

Dr. Malcolm McPhee and Dr. Leonard Schnur—really are. Their bread has been

buttered by Aetna before; each of them has been hired by Aetna multiple times to

conduct these kinds of disability reviews. See, e.g., Pearson-Rhoads v. Aetna Life Ins. Co.,

2011 WL 5116633, at *9 (E.D. Penn. Oct. 28, 2011); Flatt v. Aetna Life Ins. Co., 2015 WL

5944365, at *10–11 (W.D. Tenn. Oct. 13, 2015); see also Aschermann v. Aetna Life Ins. Co.,

2011 WL 6888840, at *10 (S.D. Ind. Dec. 30, 2011); Barrett v. Aetna Life Ins. Co., 2012 WL

2577505, at *3 (W.D. Ky. July 3, 2012); Wiggin v. Aetna Life Ins. Co., 2013 WL 6198181, at

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*6 (D. Maine Nov. 27, 2013); Hulst v. Aetna Life Ins. Co., 2014 WL 4594528, at *7 n. 4 (E.D.

Ky. Sept. 15, 2014); Rall v. Aetna Life Ins. Co., 565 Fed. App’x 753, 756 (10th Cir. 2014);

Hammonds v. Aetna Life Ins. Co., 2015 WL 1299515, at *8 (S.D. Ohio Mar. 23, 2015); Carrier

v. Aetna Life Ins. Co., 2015 WL 4511620, at * 7 (C.D. Cal. July 24, 2015); Jalowiec v. Aetna

Life Ins. Co., 2015 WL 9294269, at *10 (D. Minn. Dec. 21, 2015). 

Dr. McPhee, Aetna’s physician consultant, analyzed Maiden’s physical

complaints and concluded that Maiden’s “thoracic degenerative spine condition would

not explain his lower back and mid back pain since a motor vehicle [accident] on

2/03/2009” and that “[r]easonable restrictions and limitations . . . would be lift/carry 10

pounds frequently and up to 20 pounds occasionally, stand/walk . . . on a frequent

basis, crouch/squat, bend could be performed occasionally, sitting could be on a[]

frequent basis, hand use would be unrestricted.” (DE 27-3 at 90.) Dr. Schnur, the

psychological consultant, concluded that Maiden’s records “did not . . . include a

sufficient range of formal measurements of cognitive and emotional functioning to

accurately substantiate the presence of an ongoing functional impairment of a

psychological nature.” (Id. at 98–99.)

On April 2, 2014, Aetna informed Maiden that it had completed its final review

and had upheld its denial of Maiden’s LTD claim. (Id. at 68–70.) In this final letter,

Aetna—for the first time—identified the following shortcomings in Maiden’s evidence:

Reports indicate that the thoracic degenerative spine condition

would not explain Mr. Maiden’s level of lower back and mid

back pain since a motor vehicle accident on February 03, 2009.

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Dr. John Fiederlein on September 13, 2013 described the

degenerative thoracic changes on the report as mild

degenerative changes similar to a previous study of September

06, 2012; there were no clinical neurological findings. . . . 

There were no formal measurements of cognitive emotional

functioning to substantiate claims by Dr. Becker that Maiden

was on pain medication for a back injury and pain might affect

his concentration and attention[.]

[T]he documentation did not include formal measurements of

cognitive and emotional functioning to substantiate the

presence of an ongoing functional impairment of a

psychological nature.

(Id.) Maiden filed this suit a week later, seeking judicial review under the Employee

Retirement Income Security Act (“ERISA”), 20 U.S.C. §§ 1001 et seq. (DE 1.)

Waiver of Life Insurance Premium Benefits

Maiden applied for waiver of life insurance premium (“LWOP”) benefits in early

2013. (See DE 27-9 at 2–3.) The LWOP policy provided its own definition of “disabled”:

You will be considered permanently and totally disabled under

this plan if disease or injury prevents you from: 

• Working at your own job or profession or any other job or

profession for pay or profit; and 

• Being able to work at any reasonable job or profession. A

“reasonable job” is any job for pay or profit which you are, or

may reasonably become, qualified for by education, training,

or experience.

(DE 27-9 at 43.) Aetna’s initial review of Maiden’s LWOP claim was comprised of a file

review by an Aetna-employed nurse. (See generally id. at 30–33.) The nurse’s written

report summarized the evidence and noted that Maiden’s claim for LTD benefits had

been denied for lack of support “from both [a] medical and psychological perspective.”

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(Id. at 33.) The report also noted that Maiden’s psychiatrist felt he could work part-time

and concluded that, although Maiden’s psychologist found him unable to work due to

combined physical and psychological problems, “the exam findings in the progress

notes provided were unable to support severity of [his] psychological condition.” (Id. at

32–33.) The report did not discuss whether Maiden was “able to work at any reasonable

job or profession” other than his own. (Id. at 30–33.)

Aetna denied Maiden’s LWOP claim on August 22, 2013, stating that “the

information in [the] file was unable to support preclusion from working at any

occupation” and informing Maiden that Aetna would review “any additional

information, not previously submitted, which you believe will assist us in evaluating

your claim[.]” (Id. at 95.) Maiden appealed the LWOP denial on February 10, 2014,

providing the same materials he had submitted with his LTD appeal. (DE 27-9 at

198–99.) It’s unclear from the record how Aetna conducted its internal review, but

defendants’ briefing states that Aetna ultimately affirmed the denial of LWOP benefits

on the basis of Aetna’s denial of Maiden’s LTD claim. (See DE 27 at 23.)

Discussion

This matter is before me on cross motions for summary judgment. Summary

judgment is proper “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In reviewing cross-motions for summary judgment, a court must apply this

standard to both motions and view all facts and draw all reasonable inferences in the

7
light most favorable to the party opposing each motion. Tate v. Long Term Disability Plan

for Salaried Emps. of Champion Int’l Corp. #506, 545 F.3d 555, 559 (7th Cir. 2008). 

When reviewing the denial of a claim for benefits by an ERISA administrator,

courts apply a de novo standard “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). In the 25

years since Firestone was decided, most plans have gotten the hint and gone ahead and

given the administrator discretionary authority to determine when benefits are to be

paid. The plan here is no different. Aetna has the discretionary authority to determine

whether and to what extent eligible employees and beneficiaries are entitled to benefits.

(DE 27-12 at 67 (“We shall have discretionary authority to determine whether and to

what extent eligible employees and beneficiaries are entitled to benefits and to construe

any disputed or doubtful terms under this Policy[.]”).) As a result, my review of Aetna’s

denial of LTD and LWOP benefits is under the arbitrary and capricious standard. See

Jenkins v. Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 861 (7th Cir. 2009).

The arbitrary and capricious standard requires only rational support in the

record, but it “is not a euphemism for a rubber-stamp.” Majeski v. Metro. Life Ins. Co.,

590 F.3d 478, 483–84 (7th Cir. 2009). Where, like here, the ERISA administrator has both

the discretionary authority to determine benefits eligibility and is obligated to pay any

benefits awarded, courts should weigh the structural conflict of interest as a factor. See

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008); see also Holmstrom v. Metro. Life Ins.

8
Co., 615 F.3d 758, 766 (7th Cir. 2010) (“An administrator’s conflict is a key consideration

under this deferential standard.”).

Defendants’ Motion to Dismiss the Plan

Although it is just a distraction, there is an initial matter to sort out over whether

the plan is an unnecessary party and should be dismissed, as the defendants request.

(See DE 27 at 23.) Defendants concede that “[h]istorically, the law in the Seventh Circuit

required suit to be brought against the benefit plan” but claim the Seventh Circuit’s

opinion in Larson v. United Health. Ins. Co., 723 F.3d 905, 915–16 (7th Cir. 2013) renders

the plan an improper party here. I disagree. The general rule is that the plan is the only

appropriate party. See Blickenstaff v. R.R. Donnelley & Sons Co. Short Term Dis. Plan,

378F.3d 669, 674 (7th Cir. 2004) (citations omitted); see also Neuma, Inc. v. AMP, Inc., 259

F.3d 864, 872 n.4 (7th Cir. 2001) (“We continually have noted that ERISA permits suits to

recover benefits only against the Plan as an entity.”). In Larson, the plaintiff did not sue

the plan and instead named only the insurer as a defendant. 723 F.3d at 908. The

Seventh Circuit held that the insurer is a proper defendant under § 1132 (a)(1)(B),

“where the plaintiff alleges that she is a participant or beneficiary under an

insurance-based ERISA plan and the insurance company decides all eligibility questions

and owes the benefits[.]” Id. at 915. The question of whether the plan was a proper party

was not raised in Larson, and, thus, Larson does not limit the right of a participant like

Maiden to sue the plan under 29 U.S.C. § 1132. See generally id. at 675; see also 29 U.S.C.

§ 1132 (d) (“An employee benefit plan may sue or be sued under this subchapter as an

9
entity.”). Accordingly, defendants’ motion to dismiss the plan is denied.

Aetna’s Notices of Denial of LTD Benefits

As noted above, Aetna sent four letters regarding its denial of Maiden’s LTD

claim before it finally denied the claim in April 2014. (See DE 27-3 at 30-37, 54-55.)

Maiden argues that Aetna did not sufficiently explain why it ignored or discounted

medical evidence he submitted in support of his claim, and I take this to be a criticism

of Aetna’s notifications of the denial. (See DE 29 at 25–26.) Under ERISA, administrators

must notify participants of claim denials in writing and “in a manner calculated to be

understood by the participant” and give those whose claims have been denied “a

reasonable opportunity . . . for a full and fair review.” 29 U.S.C. § 1133. The initial claim

denial must: (1) include the specific reasons for the denial; (2) specifically refer to the

pertinent plan provisions on which the denial was based; (3) describe additional

materials or information needed to perfect the claim and explain why such information

is necessary; and (4) provide the internal appeal procedures and state that the

participant has a right to bring a civil action if the denial is affirmed after internal

review. Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992); see also 29 C.F.R.

§ 2560.503-1(g). A “blanket request for ‘additional medical information’” will not do the

job of describing “additional material or information necessary to perfect the claim[.]”

Halpin, 962 F.2d at 691 (quoting and citing Wolfe v. J.C. Penney, Inc., 710 F.2d 388, 393

(7th Cir. 1983)).

But a notification of claim denial does not need to be perfect and instead must

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only substantially comply with the regulations. See Schneider v. Sentry Group Long Term

Disability Plan, 422 F.3d 621, 628–29 (7th Cir. 2005) (finding a notice of denial not in

substantial compliance because it did not set out the specific reasons for termination of

benefits, did not identify relevant plan provisions, and did not describe additional

materials needed to perfect the claim or the plan’s review procedures); see also Wolfe, 710

F.2d at 392–93. In assessing whether a denial notice substantially complies with the

regulations, courts should “remember . . . the purpose of the regulations: to afford the

beneficiary and the courts a sufficiently precise understanding of the ground for the

denial to permit a realistic possibility of review, even under a deferential standard.”

Halpin, 962 F.2d at 694.

In my view, Aetna’s notices to Maiden did not substantially comply with

ERISA’s disclosure requirements. The May 2013 letter informed Maiden that his LTD

claim was denied because “we do not have medical information to support your claim

of disability or that you are under the care of a physician as required by your policy.”

(DE 27-3 at 31.) To begin with, the letter did not include the required reference to the

provisions of the plan requiring claimants to be under a doctor’s care. (See id. at 31–32.)

What’s more, the initial letter failed to substantially comply with the regulations

because it did not describe additional information needed to perfect the claim and

explain why that information was necessary. (Id.) For example, the May 2013 letter

indicated that Aetna had reviewed the claim for a mental health impairment and found

the “information received did not support an impairment,” but it did not describe

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additional information Maiden should submit about his mental health issues or explain

why that information was necessary. (DE 27-3 at 31.) The letter also did not ask Maiden

to submit records from neurosurgeons and pain management specialists or inform

Maiden these “records should include any diagnostic reports as well as office treatment

notes with documentation of exam findings, spinal rom [range of motion], response to

treatment, and treatment plan to better understand . . . functional capacity and

prognosis”—even though these deficiencies and recommendations appeared in Aetna’s

internal documentation. (Compare DE 27-2 at 47 and DE 27-11 at 7–8 (Aetna

documentation dated May 2013 discussing need for pain management records), with DE

27-3 at 30–32.) 

Of course, the May 2013 letter was not the only one Aetna sent to Maiden. See

Halpin, 962 F.2d at 693 (considering later letters for the sake of argument even though

the “regulations require that the denial letter itself contain specific reasons”). Aetna’s

later letters, sent in July 2013, September 2013, and October 2013 were slightly more

complete in that they specified additional mental health records Maiden could provide

to perfect the claim. (See DE 27-3 at 35, 37, 55; see also supra at 3 (showing differences

between the initial denial and later letters).) But aside from new requests for

documentation of psychological issues, these later letters provided no additional detail

about deficiencies in Maiden’s file. (See id. at 35, 37, 55 (stating “[a]lthough you have

provided additional medical documentation for consideration of LTD benefits, this

information does not support you [sic] are disabled and your claim remains

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terminated”).) Like the May 2013 letter, these later letters failed to state that Maiden

should submit records from neurosurgeons and pain management specialists, and they

gave Maiden no sense of why the additional records he had already submitted were not

good enough. (See generally id. at 34–37, 54–55.)

The shortcomings in Aetna’s pre-appeal letters could have left—and apparently

did leave—significant gaps in Maiden’s understanding of what information was needed

to perfect his claim. In September 2013, after Aetna had already sent three letters to

Maiden, he contacted Aetna to request clarification. (DE 27-11 at 1.) During a phone

conversation with an Aetna representative, Maiden “appeared confused” and requested

“a specific list of what medical information [is] need[ed] to review his claim.”(Id.)

Maiden also asked for an explanation of Aetna’s request for a “detailed narrative from a

physician” because he had already submitted three narratives and had not been told by

Aetna why they were insufficient. (See id.) The Aetna representative who spoke with

Maiden “wasn’t sure what to tell him” and asked someone else to return the call. (Id.) 

It is unclear from the record whether Aetna called Maiden back, but it doesn’t

really matter because Aetna was required to give Maiden adequate information about

what Aetna had reviewed and what evidence it viewed as needed but missing in

writing. While Aetna’s April 2014 letter laid out in more detail than ever the reasons for

Aetna’s denial of the claim, it came too late in the game to afford Maiden a full and fair

opportunity for review. (See DE 27-3 at 68–70.) And that’s what the regulations require:

that claimants have an opportunity for a full and fair review of claim denials by “an

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appropriate named fiduciary of the plan.” See 29 C.F.R. § 2560.503-1(h). The problem in

this case is that the letter was issued after Aetna had completed its internal review (DE

27-3 at 68–70), and Maiden was not given an opportunity to address it prior to Aetna’s

final denial. See Halpin, 962 F.2d at 694 (affirming entry of summary judgment for

claimant where administrator’s correspondence contained “nothing . . . which in any

adequate way identified the items considered by the administrator” and did not

provide “adequate disclosure of reasons for the initial denial”). 

Aetna’s failure to provide Maiden with adequate information about why his

claim had been denied before Aetna’s internal review prevented Maiden from receiving

a full and fair opportunity for review by Aetna. For this reason alone, Maiden is entitled

to summary judgment. 

Compound Effect of Maiden’s Physical and Psychological Problems

There are other problems with how Aetna went about its work here. Chief

among them is Aetna’s failure to consider the compound effect of Maiden’s physical

and psychological problems on his ability to work. From the beginning, Maiden’s claim

for LTD benefits was based on multiple conditions, including (a) “severe back pain and

the medications to prevent it” and (b) bipolar disorder. (See DE 27-8 at 95 (also listing

hypertension, chronic obstructive pulmonary disease, sleep apnea, and diabetes).) In

addition, the records submitted by Maiden’s treating providers noted the interplay of

his physical and psychological problems. For example, Dr. Akey, a psychologist who

saw Maiden several times at the request of his regular therapist, stated “based on my

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assessment of his psychological functioning on our most recent contact . . . I believed

that his physical and psychological problems had combined such that he was not able to

utilize the concentration, persistence, and precision required in his job.” (DE 27-8 at 85.)

On another occasion Dr. Akey noted that Maiden’s “multiple chronic medical

conditions had combined with the acute unresolved problem of pain . . . such that his

capacity to sustain adaptive functioning on the job was overwhelmed.” (DE 27-8 at 94.)

Dr. DeVault, Maiden’s regular therapist, also noted that “throughout the course of

therapy Mr. Maiden has significant mental and medical issues which make it too

difficult to work.” (DE 27–8 at 6.) There’s more. Dr. Donaldson, a neurosurgeon to

whom Maiden was referred for back pain, similarly noted the effect of Maiden’s

psychological impairments on treatment options. (DE 27-8 at 80.) In particular, in a

letter to another doctor, Dr. Donaldson said that a spine stimulator was contemplated

for Maiden, but the idea was discarded because of Maiden’s “psychiatric issues

currently.” (Id.)

While Aetna said it reviewed Maiden’s “claim for both a physical and mental

health impairment,” the record shows that Aetna assessed Maiden’s ability to work in

silos, considering whether Maiden’s back pain rendered him disabled under the plan

separate and apart from whether psychological problems did. Aetna’s approach is most

obvious in the reports drafted by Aetna’s reviewers during Maiden’s internal appeal.

(See generally DE 27-3 at 87–92, 95–99.) Dr. McPhee, the physician consultant Aetna

hired, was asked to focus ”on the effect that any physical conditions would have on

15
[Maiden’s] function for the time period from 9/12/2012 to 03/29/2014.” (Id. at 90.) He

noted that Maiden had “been under psychiatric care for many years” and that

“psychiatric conditions affect an individual’s reaction to physical symptoms[,]” but

nothing in Dr. McPhee’s report suggests that he consulted with Dr. Schnur, Aetna’s

other reviewer, regarding the combined effect of Maiden’s medical and psychological

impairments. (Id.) 

Similarly, Dr. Schnur, the psychologist Aetna hired to review Maiden’s records,

was asked to determine whether Maiden “has a psychological impairment which would

preclude [him] from performing the work of his ‘own occupation’ for the time period

9/12/12 through 3/29/14.” (Id. at 97.) Dr. Schnur’s report stated that the majority of

information submitted pertained to Maiden’s physical health but gave no indication

that Dr. Schnur consulted Dr. McPhee to determine Maiden’s overall well-being. (Id.)

Indeed, Dr. Schnur made it clear that such an assessment was “beyond the scope of (his)

expertise” and needed to be assessed by other reviewers. (Id.)

Whether Maiden’s health concerns satisfy the plan’s definition of “disability” or

not, they are comprised at a minimum of back pain and psychological impairments, and

nothing in the plan justified Aetna’s consideration of these co-morbidities in isolation.

(See generally DE 27-12 at 8 (defining disability).) Aetna should have reviewed the

compound effect of Maiden’s physical impairments and his psychiatric issues, and its

failure to do so was an arbitrary and capricious exercise of Aetna’s discretion. Compare

generally Kirkpatrick v. Liberty Mut. Group, Inc., 856 F.Supp. 2d 977, 999 (S.D. Ind. 2012)

16
(granting summary judgment to claimant where the plan “failed to consider relevant

aspects of [the claimant’s] medical condition” and directing the plan to “ensure it

considers and addresses [claimant’s] physical condition as a whole” on remand).) 

Aetna’s Assessment of the Evidence

Even within the silos of physical versus psychological disabilities, Aetna’s review

of Maiden’s file is troubling. Aetna argues that there was substantial evidence upon

which to base its denial and cites to the written reports of its consulting reviewers. (DE

32 at 13–17; DE 27 at 12–21.) Maiden disagrees and claims that Aetna improperly gave

more weight to its own reviewers, unfairly discredited Maiden’s supporting evidence,

and cherry-picked evidence to support its denial of Maiden’s claim. (DE 29 at 26–29; DE

33 at 14–15.) Because both of Aetna’s consultants essentially rejected the opinions of

Maiden’s treating physicians, the question is whether they provided “a reasoned basis”

for doing so. See Holmstrom, 615 F.3d at 775 (“Administrators may not arbitrarily refuse

to credit [the] opinions of a treating physician” but are entitled to disagree with such

opinions “if there [is] evidence in the record providing a reasoned basis for doing so.”);

Love v. Nat’l City Corp. Welfare Benefits Plan, 574 F.3d 392, 398 (7th Cir. 2009) (“While

plan administrators do not owe any special deference to the opinions of treating

physicians, they may not simply ignore their medical conclusions or dismiss those

conclusions without explanation.”).

In addition, as I alluded to above, Dr. McPhee and Dr. Schnur’s relationship with

Aetna is not immaterial to my analysis here. A consultant “hired by the administrator

17
. . . may have a financial incentive to be hard-nosed in his claims evaluation in order to

protect the financial integrity of the plan.” Hawkins v. First Union Corp. Long-Term

Disability Plan, 326 F.3d 914, 917 (7th Cir. 2003). If a treating physician and a plan’s

consultant are assumed to have equal and opposite incentives, then “consideration of

the incentives drops out and the superior information is likely to be possessed by the

treating physician, especially when . . . the consultant does not bother to examine the

patient.” Id. Dr. McPhee and Dr. Schnur appear to have an ongoing consulting

relationship with Aetna (see supra at 4–5), and there is no dispute that they based their

opinions entirely on the record evidence. 

1. Back Pain Evidence

In its April 2014 letter, Aetna summarized Maiden’s evidence related to back

pain and identified shortcomings that led Aetna to affirm its denial of Maiden’s claim.

Specifically, Aetna noted that “mild degenerative thoracic changes” shown on an MRI

in September 2013 were described by one doctor as “similar” to those on a September

2012 MRI, claimed that “there were no clinical neurological findings,” and concluded

that “the thoracic degenerative spine condition would not explain Mr. Maiden’s level of

lower back and mid back pain.” (DE 27-3 at 69.) These criticisms mirror those identified

by Dr. McPhee, Aetna’s consulting physician, in the report he wrote documenting his

reivew of Maiden’s records. (Compare id., with DE 27-3 at 90.) In addition, they are the

only reasons provided by Aetna for its decision that the restrictions on Maiden’s

physical activity by his primary care physician were “not supported by the file

18
information.” (Id.; see also DE 27-3 at 69 (Aetna’s finding that reasonable restrictions and

limitations for Maiden would be to “lift/carry 10 pounds frequently and up to 20

pounds occasionally, stand/walk . . . on a frequent basis, crouch/squat, bend . . .

occasionally, sitting on a frequent basis, [and] hand use would be unrestricted”), with

DE 27-4 at 2 (documentation from Maiden’s primary care physician limiting Maiden to

sedentary work).) 

But similarities between MRIs of Maiden’s back taken in 2012 and 2013 and the

purported lack of “clinical neurological findings” here can hardly be called a “reasoned

basis” for Aetna’s decision. At a minimum, this is another example of Aetna’s failure to

specify what was needed to perfect the claim because it does not explain what sort of

clinical neurological findings were needed and/or why the information Maiden had

already submitted were not good enough. Even if it were perfectly clear what counts as

“clinical neurological findings,” it misapprehends Maiden’s claim and inexplicably

disregards the record that Aetna had before it. Maiden’s claim is that his back pain

(together with other problems) was already permanently disabling by September 2012

when he stopped working, so there was no basis for Aetna to require a showing that

Maiden’s degenerative thoracic spine condition had worsened between 2012 and 2013.

Further, the MRIs taken of Maiden’s back in September 2012 showed “a mild focal

central disc herniation at T7-T8,” “a mild right sided disc bulge at T9-T10 with mild

flattening of the right anterior cord and mild spinal stenosis,” and “bilateral facet

ligamentous hypertrophy at T10-T11 with moderate spinal stenosis,” and an MRI in

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October 2012 showed “[b]ridging anterior osteophytes . . . at multiple levels in the lower

thoracic spine.” (DE 27-6 at 98; DE 27-7 at 1.) It is unclear from the record how Aetna

viewed this evidence and/or why Aetna decided to disregard it.

In addition, the MRI evidence Maiden submitted was just one piece of a large

puzzle of information about Maiden’s back pain. (See generally DE 29 at ¶¶ 36, 38, 43–44,

47, 49, 52, 54, 57–58, 60–67, 69–70, 73–76 (summarizing evidence.).) When Maiden’s

physician examined him in September 2012, she noted decreased lumbar mobility,

paravertebral muscle spasm, bilateral thoracic tenderness, and bilateral lumbosacral

tenderness and recommended him for a neurosurgery consult. (DE 27-6 at 92.) Maiden

also submitted records from numerous specialists who examined him and found him to

have significant back pain. Dr. Siddiqui, a pain management specialist to whom one of

Maiden’s neurologists referred him, reported that he was able to reproduce Maiden’s

mid-back pain by “[e]xtension and lateral bending, facet loading” and that Maiden’s

back pain was reproduced by “[p]alpation of thoracic facet joints at T9-10, T10-11, T11-

12 levels” and found “[t]he evidence for the diagnosis of thoracic facet joint pain with

controlled comparative local” at a “Level I.” (DE 27-6 at 18–19; see also DE 27-6 at 14

(finding on October 28, 2013 “evidence for the diagnosis of thoracic facet joint pain with

controlled comparative local is Level I or II-1 based on the USPSTF criteria”).) 

While Aetna felt that a “thoracic degenerative spine condition would not explain

Mr. Maiden’s level of lower back and mid back pain[,]” Dr. Siddiqui had a different

opinion and found that Maiden’s back pain was of a “well-documented thoracic facet

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joints origin as evidenced by successful response to two separate sets of diagnostic

medial branch nerve blocks[.]” (Compare DE 27-3 at 69, with DE 27-6 at 10–11 (emphasis

added).) Dr. Siddiqui, like other providers treating Maiden, found Maiden eligible for

diagnostic procedures and treatment that would make no sense if Maiden’s pain were

insignificant or were not caused by a problem in the thoracic spine. (See DE 27-6 at

18–19 (recommending “diagnostic bilateral thoracic medial branch block at T9-10, T10-

11 and T11-12”and agreeing to provide Maiden with pain treatment, including “long

term opioid and non-opioid medication therapy, periodic utilization of intervention

pain management techniques, and multimodal pain management therapy”); id. at 10

(12/9/13 progress notes requesting thoracic facet medial branch nerve neurotomies); see

also, e.g., DE 27-5 at 63 (10/2/12 report of thoracic spine x-rays); DE 27-5 at 82 (11/16/12

letter noting an epidural steroid injection at T9-T10); DE 27-8 at 80 (12/13/12 letter

noting a selective nerve root injection at left T10); DE 27-4 at 1 (2/20/13 physician

statement noting vertebral spine aspiration); DE 27-8 at 76 (5/14/13 letter noting a bone

biopsy and discussing possible surgery at T10-11); DE 27-4 at 97 (11/21/13 physician

statement noting physical therapy).)

Maiden’s MRIs and medical records from treating physicians showing the results

of diagnostic procedures and pain assessments are the sort of “reliable, contrary

evidence” that Aetna needed to consider to afford Maiden a full and fair opportunity

for review. See Love, 574 F.3d at 397(internal citation and quotation marks omitted);

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“Plan administrators, of

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course, may not arbitrarily refuse to credit a claimant’s reliable evidence, including the

opinions of a treating physician.”). Aetna’s failure to say why it had disregarded such

evidence or considered it but found it unpersuasive is suspect, to say the least.

And then, of course, there are Maiden’s repeated claims of significant back pain

made to many providers and his willingness to undergo painful procedures to diagnose

and/or relieve his pain. It is not appropriate to disregard subjective evidence just

because some or all of the evidence is self-reported. See, e.g., Majeski, 590 F.3d at 485

(“[A] plan may not deny benefits solely on the basis that the symptoms of the disability

are subjective[.]”) (citing Hawkins, 326 F.3d at 919); see also Schwarzwaelder v. Merrill

Lynch & Co., 606 F.Supp. 2d 546, 563 (W.D.Penn.2009) (surveying cases); see also

Pierzynski v. Liberty Life Assurance Co., No. 10–14369, 2012 WL 3248238, at *4 (E.D.Mich.

Aug. 8, 2012) (concluding that the plan obligated the administrator “to take into account

Plaintiff’s subjective complaints of pain . . . something that it did not do when it chose a

file review over a physical examination of Plaintiff”). 

Maiden made numerous trips to his regular doctor and to several specialists in

apparent attempts to get relief from his pain. (See, e.g., DE 27-6 at 90–93 (documenting

visit to Dr. Becker, Maiden’s primary care physician, in September 2012 during which

reported “worsening” and “persistent” back pain); DE 27-8 at 80–82 (summarizing

Maiden’s visits to a neurosurgeon in November and December 2012 and reporting that

Maiden visited another doctor about possible use of a spine stimulator); DE 27-8 at

75–76 (summarizing visits to a surgeon, in January and April 2013); DE 27-4 at 49–52

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and DE 27-6 at 69–73, 78–82 (summarizing May, July, and August 2013 visits to

Maiden’s primary care physician); DE 27-6 at 52–55 (noting June and September 2013

MRIs by Dr. Fiederlein); DE 27-6 at 48-51 (summarizing September 2013 visits with a

surgeon); DE 27-6 at 10–20 (documenting visits in October, November, and December

2013 with a pain management specialist).) Aetna was not required to find that Maiden’s

subjective evidence proved a disability, but, at a minimum, this evidence “supports an

inference that his pain . . . was disabling.” Diaz v. Prud. Ins. Co., 499 F.3d 640, 646 (7th

Cir. 2007). 

Aetna argues that Maiden’s “allegations of debilitating symptoms were

inconsistent with the fact that he worked for many years while receiving treatment for

his psychiatric and physical conditions.” (DE 27 at 12.) Maiden rightly points out that

Aetna failed to assert this as a reason for its denial of benefits and cannot rely on it now.

See Halpin, 962 F.2d at 696 (“A post hoc attempt to furnish a rationale for denial of . . .

benefits in order to avoid reversal on appeal, and thus meaningful review is not

acceptable.”) (internal quotation marks and citation omitted). But even if Aetna had

raised this issue before, I think Maiden’s long work history with this company and the

continuation of his tenure after the 2009 car accident suggests he is not a shirker of work

or someone inclined to malinger. In addition, the Seventh Circuit has recognized many

times, there is no “logical incompatibility between working full time and being disabled

from work full time. . . . A desperate person might force himself to work despite an

illness that everyone agreed was totally disabling [but] might not be able to maintain

23
the necessary level of effort indefinitely.” Hawkins, 326 F.3d at 918. 

Moreover, here there are multiple contributing factors to the decline of Maiden’s

health. It could be that his back pain was no worse in September 2012 than it was before

and still he was disabled because his mental health had so deteriorated that he could no

longer handle a level of pain that was previously bearable.(See DE 27-4 at 29 (letter from

Maiden’s therapist, stating that “[s]ince this therapist has been working with Mr.

Maiden his mental health issues have worsened to the point where he has a difficult

time functioning on a daily level.”); see also DE 27-8 at 85 (letter from a psychologist

who evaluated Maiden, finding “that his physical and psychological problems had

combined such that he was not able to utilize the concentration, persistence, and

precision required in his job”).) It could also be that Maiden’s pain and psychological

problems did not worsen in September 2012, but Maiden just hit his limit and couldn’t

do it anymore. Neither scenario would preclude Maiden from meeting the plan’s

definition of “disability.” 

2. Evidence of Psychological Impairments

Aetna’s review of evidence regarding Maiden’s psychological issues was also

problematic. As with the physical component of Maiden’s complaint, Aetna relied

heavily on the opinion of its consultant, Dr. Schnur, in making its decision. (Compare 27-

3 at 99, with DE 27-3 at 69 (both stating that “there were no formal measurements of

cognitive and emotional functioning to indicate that the claimant was unable to perform

the work of his own occupation from a psychological standpoint”).) In its briefing,

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Aetna argues that its decision in this regard was not arbitrary because “mental health

providers should submit document testing, evaluations, mental status examinations

and provide global assessment of functioning scores, and perform neurological testing.”

(DE 32 at 7.) 

This is perplexing because the record in this case contains numerous examples of

the formal measurements Aetna claims it never received. For example, The Alpine

Clinic, where Maiden went for therapy as early as 2006, provided numerous global

assessment of functioning scores. (DE 27-8 at 134 (GAF of 48 in June 2006); DE 27-8 at

130 (GAF of 50 in September 2008); DE 27-8 at 119 (GAF of 55 in October 2012); DE 27-4

at 4 (GAF of 45 in February 2013; GAF of 51 prior to work leave).) Dr. Akey, a

psychologist, who Maiden’s regular therapist asked to do a formal mental health

assessment, administered a personality inventory, the MMPI-2, to Maiden in September

2012. (DE 27-5 at 62.) She also conducted a formal mental health assessment of Maiden

over several sessions and reported her findings, which included several diagnoses

under the American Psychiatric Association’s Diagnostic and Statistical Manual of

Mental Disorders. (See generally 27-7 at 72–77.) 

And yet nowhere in Aetna’s pre-appeal letters, Dr. Schnur’s report, or Aetna’s

final denial letter are these measurements addressed. As with the reliable evidence of

physical symptoms Maiden submitted, Aetna was not required to find these

measurements demonstrate a disability, but it could not just disregard them. 

3. “Conflicting” Evidence

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In their briefs, defendants argue that Aetna was justified in relying on the

opinions of its own consultants and disregarding those of Maiden’s providers because it

had a duty and a right to resolve “conflicting medical opinions” (DE 32 at 10–11 (citing

Hoffman v. Sara Lee Corp., 2013 WL 4804843 (N.D.Ill. Sept. 9, 2013).) But Hoffman is

inapposite. There, the claimant for severance benefits submitted no evidence in support

of his claim except his own conflicting accounts of events surrounding his departure

from the company. Id. at *5–6, *10. The court understandably found the administrator

was entitled to sort out the inconsistencies in the claimant’s story and had a rational

basis to deny benefits. Id. at *5–6. Here, there is no such conflict. Maiden has not given

conflicting accounts about his ability to work, and neither have his providers. Aetna has

cited no opinion of a treating provider indicating that Maiden could perform his job on

a full time basis. To the contrary, they all seem to agree that Maiden could, at most,

work part time. (See DE 27-4 at 11 (5/2/13 statement from Maiden’s psychiatrist

indicating that he could work 3–4 hours a day); DE 27-8 at 85 (5/10/13 letter from Dr.

Akey, stating that his “physical and psychological problems had combined such that he

was not able to utilize the concentration, persistence, and precision required in his job”

and that he “could work part time . . . if he now believes he can sustain sufficient effort

to complete his work on a reduced schedule”) (emphasis added); DE 27-8 at 6 (6/3/13

letter from Dr. DeVault stating that he “is not capable of being able to adequately

function in the workplace”); see also DE 27-4 at 1 (2/20/13 statement from Dr. Becker

stating that the number of hours Maiden could work was unknown but indicating he

26
could do only sedentary work).)

Defendants also attempt to justify Aetna’s decision by pointing to evidence in

Maiden’s file that Aetna asserts shows Maiden’s pain is not as serious as he claims. For

example, defendants claim that the finding by Maiden’s physician that he could not sit

or stand for long periods of time was contradicted by a neurologist’s findings that were

“unremarkable” and showed“normal neurological findings.” (DE 32 at 14.) But a look at

the records belies the argument. The cited records refer to examinations by Dr. Reibold,

a neurologist, for leg or hip pain that Maiden developed in mid 2013, not back pain. (See

DE 27-4 at 47 (noting visit for leg pain); DE 27-4 at 60 (noting pain in both the spine and

the leg but stating that an MRI scan did not show the thoracic spine); DE 27-4 at 66

(noting return visit for severe pain in left leg); DE 27-5 at 1 (noting hip pain).) The

specialists who examined Maiden for back pain—a neurosurgeon, a surgeon, and a pain

management specialist—all agreed that Maiden had thoracic back pain and, apparently,

that it was significant enough to justify powerful narcotics and painful and expensive

procedures. (See generally discussion supra at 20–22.) 

Similarly, defendants assert that Dr. Donaldson, a neurosurgeon, examined

Maiden only once, “documented normal strength,” and “did not find the condition

serious enough to recommend surgery.” (DE 32 at 14; see also DE 27 at 16.) In fact, Dr.

Donaldson saw Maiden at least twice, performed several nerve root injections, and

concluded that he had “persistent” back pain. (DE 27-8 at 80–81.) Her records do not

expressly state why she did not “recommend surgical intervention at this time,” but they

27
seem to suggest it was because the nerve root injections Maiden underwent failed to

provide Maiden with any long term relief. (Id. (emphasis added).) Dr. Donaldson’s

decision not to recommend surgery may also have stemmed from her knowledge that

Maiden was exploring alternative options with other specialists. (Id.) 

One last example of Aetna’s selective reading of the record is its claim that Dr.

Gorup, a surgeon who examined Maiden, “reported a normal neurological exam with

good hip range” and did not document any exam findings. (DE 32 at 14; see also DE 27

at 16.) In reality, Dr. Gorup found Maiden to suffer from thoracic stenosis, and he took

Maiden’s complaints of pain seriously enough to conduct a bone biopsy. (DE 27-6 at 48;

DE 27-8 at 75–76.) Dr. Gorup also found Maiden to be a candidate for spinal surgery.

(DE 27-8 at 75–76.) 

These are not the only instances of cherry-picking by Aetna; the defendants’

briefs, the reports of Aetna’s consultants, and Aetna’s denial letters are replete with

them. Such a selective reading of Maiden’s record is unjustified and fell short of what

was required of Aetna. See Majeski, 590 F.3d at 483–84 (holding that denial was arbitrary

where insurer selectively relied on pieces of evidence to support denial of benefits,

while context demonstrated disability); Leger v. Tribune Co. Long Term Disability Benefit

Plan, 557 F.3d 823, 833 (7th Cir. 2009) (finding denial arbitrary where insurer

cherry-picked statements from claimant’s medical history to support the decision, but

ignored significant other supporting her claim of disability); see also Glenn v. Metro. Life

Ins. Co., 461 F.3d 660, 672–73 (6th Cir.2006) (holding denial was arbitrary where the plan

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selectively considered evidence to reach a decision unsupported by the record as a

whole), aff'd 554 U.S. 105 (2008). 

In summary, the problems in Aetna’s review of Maiden’s evidence—inexplicably

disregarding the opinions of treating physicians and ignoring evidence supporting

disability while cherry-picking evidence to support a denial—lend an unmistakable hue

of capriciousness to Aetna’s review. When you add to the pile the fact that Aetna used

consultants with an incentive to affirm and itself had a structural conflict of interest and

would have to pay Maiden any LTD benefits awarded, it’s clear that Aetna abused its

discretion, and Maiden must be given another opportunity to prove his claim. See

Holmstrom, 615 F.3d at 777 (“A structural conflict is one factor among many that are

relevant in the abuse-of-discretion analysis . . and will act as a tiebreaker when the other

factors are closely balanced.”) (citation and quotation omitted).

LWOP Benefits

Aetna asserts that Maiden may not argue the denial of LWOP benefits was an

abuse of discretion because he did not raise it in his opening summary judgment brief

(DE 32 at 17.) This assertion is odd as Maiden’s motion and his brief make clear that he

intended to address Aetna’s denials of both his LTD claim and his LWOP claim. (See,

e.g., DE 28 at 5, 8; DE 29 at 5, 8.) Lumping the two claims together makes sense here,

where even Aetna admits that its LWOP denial was based in significant measure on

Aetna’s finding that Maiden could perform his own job during Aetna’s review of the

LTD claim—a finding I have now determined to have been arbitrary and capricious.

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(See DE 27 at 23.) Though Aetna’s final denial of LWOP benefits states that Maiden’s

evidence did not show he could not work at another job or occupation, it is clear that

this determination was entirely derivative of Aetna’s finding that Maiden could do his

own job during the LTD review. (See id. (“Aetna reasonably explained that because

Plaintiff was not disabled form his own job, he was also not disabled from any

reasonable job, thus it was upholding its denial of his LWOP claim.”); see also DE 27-9 at

31–33 (nurse review including no discussion of the LWOP policy’s “any reasonable job

or occupation” prong).) Accordingly, Aetna’s review of Maiden’s LWOP claim was

arbitrary and capricious, and the denial of the claim was an abuse of discretion.

Appropriate Remedy 

Maiden asks me to award a retroactive payment of benefits plus interest instead

of remanding the case to Aetna. (DE 28 at 13; DE 33 at 18–19.) Reinstatement of benefits

usually is reserved for “claimants who were receiving disability benefits, and but for

their employers’ arbitrary and capricious conduct, would have continued to receive

benefits, or . . . situations where there is no evidence in the record to support a

termination or denial of benefits.” Quinn v. Blue Cross & Blue Shield Ass’n, 161 F.3d 472,

477 (7th Cir. 1998) (citation omitted). Where, like here, the claimant was not receiving

benefits and the administrator failed “to make adequate findings or . . . to provide an

adequate reasoning, the proper remedy . . . is to remand for further findings or

explanations, unless it is so clear cut that it would be unreasonable for the plan

administrator to deny the application for benefits on any ground.” Id. at 477 (quoting

30
Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir. 1996) (internal quotation marks omitted).

This is not such a case. Maiden may find himself unable to perfect the claim, even with

more specific information about what Aetna needs to see and even after Aetna

considers the compound effect of his physical and psychological impairments.

Accordingly, the case must be remanded to Aetna for further review and

reconsideration.

CONCLUSION

For these reasons, Maiden’s Motion for Summary Judgment (DE 28) is

GRANTED, and Defendants’ Motions for Summary Judgment and to Dismiss (DE 26)

are DENIED. This case is REMANDED to Aetna for further proceedings consistent

with this judgment.

SO ORDERED.

ENTERED: January 6, 2016

s/ Philip P. Simon 

CHIEF JUDGE

UNITED STATES DISTRICT COURT

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