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11th Cir. – Unpublished – Pro Se LTD Plaintiff

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  • 11th Cir. – Unpublished – Pro Se LTD Plaintiff

    Here’s a new decision out of the Eleventh Circuit, entitled Timothy P. O’Leary v. Aetna Life Insurance Company. In this matter, the plaintiff was in a motorcycle accident and filed for LTD benefits. Aetna paid his 24 months of “own occupation” benefits and continued to pay him for an additional 7 months of “any occupation” benefits. He was approved for SSDI benefits also. Nine years after the motorcycle accident, Aetna formed a review and terminated his benefits. In support of their decision, they cited surveillance and peer reviews. Plaintiff proceeded pro se and lost at the District Court and then appealed to the Eleventh Circuit. The court first turns to the standard of review.

    Regarding the first step, we assume for purposes of this appeal that Aetna’s decision to terminate benefits was de novo wrong. Moving to the second step, the parties disagree about whether the policy vested Aetna with discretion to review claims. The policy in the record states that Aetna has “discretionary authority to determine whether and to what extent employees and beneficiaries are entitled to benefits; and construe any disputed or doubtful terms of this policy.” Doc. 19-10 at 196. O’Leary argues that the quoted provision comes from a policy that went into effect in 2013 and thus does not address whether the earlier group policy, which governs the claim in this case, gave Aetna discretion to review claims. After O’Leary raised this argument in his summary judgment brief in the district court, Aetna filed an affidavit acknowledging that the provision in the record comes from a 2013 policy but explaining that this language also appeared in the earlier policy that applies to O’Leary. In the district court, O’Leary failed to answer or respond to Aetna’s affidavit evidence. Because O’Leary never contested the affidavit, the district court found that he had conceded that the relevant policy gave Aetna discretion in reviewing claims. O’Leary raised no argument before the district court challenging the affidavit as improper—for example, by arguing that it should not be considered because it was not part of the administrative record—so we will consider the contents of the uncontested affidavit. See Norelus v. Denny’s, Inc., 628 F.3d 1270, 1296 (11th Cir. 2010) (recognizing the “well-established rule against reversing a district court judgment on the basis of issues and theories that were never presented to that court” because “issues not raised in the district court should not be considered on appeal”). After considering the affidavit, we conclude that the policy vested Aetna with discretion in reviewing claims.
    With all due respect to the plaintiff, I believe this is yet another example of why plaintiffs should really have an attorney for this process. I believe that the affidavit would have been excluded had he argued it. The court seems to indicate this as well.

    Next, the court turns to whether there was a reasonable basis for Aetna’s decision and concludes that there was.

    At the third step, we conclude that reasonable grounds supported Aetna’s decision to terminate O’Leary’s benefits. We acknowledge that there is some evidence in the administrative record—including O’Leary’s self-reported symptoms and opinions from some medical providers—that would support a conclusion that O’Leary remained disabled and entitled to benefits. But other evidence in the administrative record—including the surveillance footage of O’Leary and the opinions of the physicians who reviewed O’Leary’s medical records—supports the conclusion that O’Leary’s functioning was no longer impaired. Because Aetna was entitled to rely on the surveillance evidence and the assessments of O’Leary’s capabilities by independent physicians who reviewed O’Leary’s medical files, its decision was not arbitrary and capricious. See Turner v. Delta-Care Disability & Survivorship Plan, 291 F.3d 1270, 1274 (11th Cir. 2002) (concluding that administrator’s decision that claimant was no longer eligible for benefits was not arbitrary and capricious when it relied on, among other evidence, surveillance reports); Blankenship, 644 F.3d at 1357 (concluding that administrator did not act unreasonably in relying on file reviews from independent doctors instead of in-person, physical examinations of the claimant).
    The opinion is attached below.
    Attached Files
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