                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2007

DeLong v. Aetna Life Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1879




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 06-1879
                                  ________________

                                   JOHN DELONG,

                                            Appellant
                                             v.

                       AETNA LIFE INSURANCE COMPANY
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 05-cv-03371)
                      District Judge: Honorable Cynthia M. Rufe
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  APRIL 20, 2007
          Before:   SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES

                                 (Filed May 21, 2007)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      John DeLong sued Aetna Life Insurance Company (“Aetna”), claiming that Aetna

improperly terminated his disability benefits.1 Aetna moved for summary judgment,


      1
       DeLong originally termed his cause of action a breach of contract. However, as
Aetna pointed out in its answer to the complaint, DeLong’s claim is properly
characterized as a claim for denial of benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B).
which the District Court granted. DeLong appeals.

         We exercise jurisdiction under 28 U.S.C. § 1291. Our review is plenary, including

our consideration of whether the District Court employed the proper standard to review

Aetna’s disability determination. See Abramson v. William Paterson College, 260 F.3d

265, 275 (3d Cir. 2001); Ellis v. Liberty Life Assur. Co., 394 F.3d 262, 269 (5th Cir.

2004).

         We first hold that the District Court did not err in reviewing Aetna’s denial of

DeLong’s claim for abuse of discretion or for an arbitrary and capricious decision. An

arbitrary and capricious standard applies if a plan gives an administrator discretion in

making eligibility decisions, unless the person challenging the decision shows that the

exercise of discretion has been tainted by a conflict of interest or otherwise.

See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Gillis v. Hoechst

Celanese Corp., 4 F.3d 1137, 1141 (3d Cir. 1993); Kostrosits v. GATX Corp. Non-

Contributory Pension Plan for Salaried Employees, 970 F.2d 1165, 1173 (3d Cir. 1992).

The parties agree that the plan at issue gives Aetna discretionary authority to decide

claims, and DeLong raises no inference of a conflict of interest.2 DeLong maintains,


DeLong did not challenge the characterization of his claim in the District Court, and now
describes his claim as one under § 1132(a)(1)(B) (Appellant’s Brief 19).
         2
       We reject DeLong’s claim (Appellant’s Brief 27) that Aetna had some ulterior
motive or “beneficial interest” in stopping disability payments to DeLong. As DeLong
concedes, Aetna administered the plan while his former employer funded it. (Appellant’s
Brief 29.) Accordingly, the heightened scrutiny required when a company both funds and
administers benefits, see Pinto v. Reliance Std. Life Ins. Co., 214 F.3d 377, 387 (3d Cir.

                                               2
however, that Aetna’s decision was arbitrary and capricious.

       We conclude, however, that Aetna’s decision to terminate DeLong’s disability

payments was not arbitrary and capricious. Under the arbitrary and capricious standard of

review, a court may overturn the decision of a plan administrator only if it is “‘without

reason, unsupported by substantial evidence, or erroneous as a matter of law.’” Abnthya

v. Hoffman-LaRoche, Inc., 2 F.3d 40, 45 (3d Cir. 1993) (citations omitted). The narrow

scope of review disallows a court from substituting its own judgment for a rational

decision made by the plan administrator. See id. We evaluate the decision to deny

benefits against the record available to the plan administrator. See Koshiba v. Merck &

Co., 384 F.3d 58, 69 (3d Cir. 2004).

       As the District Court noted, the plan administrator was faced with conflicting

evidence regarding DeLong’s disability. DeLong’s treating physician diagnosed him as

permanently disabled because of multiple herniations, bulging discs, stenosis,

oesteophytes, body impingement, and torn menisci. (Supp. App. 00308-11.) He noted

that DeLong was unable to sit, stand, or walk for more than 15 minutes, and that DeLong

could not climb, squat, or kneel. (Id. at 00310.) DeLong reported “pretty constant pain”

and the inability to sit or stand for a long time. (Id. at 00317-18, 00342.) He stated that

he used one cane at home and two canes outside his residence. (Id. at 00341.) DeLong

noted that he could walk for about 15 minutes at a time, stand, ascend and descend stairs,



2000), is unwarranted.

                                              3
occasionally bend at the waist in moderation, and drive. (Id. at 00342-43.) Orthopedists

whom DeLong consulted for back and leg pain concluded that DeLong suffered from a

combination of degenerative disc disease and spinal stenosis, as well as severe

degenerative joint disease of the knees. (Id. at 00377-83, 00402.) The doctor reviewing

DeLong’s MRI results for one orthopedist determined that DeLong suffered from

“degenerative discogenic changes of the lumbar spine with spinal stenosis demonstrated

at multiple levels.” (Id. at 00384.)

       Aetna engaged the services of an investigator to conduct surveillance on DeLong.

On four days in June 2004, an investigator staked out DeLong’s home and otherwise

observed his activities. (Supp. App. 00345-54.) On one day, the investigator did not find

DeLong at his home in Philadelphia. (Id. at 00346-47.) Told by a neighbor that DeLong

had a family home in Wildwood, New Jersey, the investigator looked there, but to no

avail. (Id.) On the second day of surveillance, the investigator did not see DeLong, and

assumed that DeLong was confining his activities to his residence. (Id. at 00347-48.)

However, on the third day, the investigator watched DeLong walk from his home to his

car, drive approximately 100 miles to Wildwood, exit his vehicle, walk along the side of,

and to the entrance of, the shore home without braces or orthopedic support. (Id. at

00348-50.) When DeLong left the home and got into his car, and on DeLong’s return, the

investigator obtained three minutes of surveillance video. (Id. at 00349-50.) On the

following day, the fourth and last day of surveillance, the investigator observed DeLong



                                            4
sitting on his front porch, moving his arms and hands and occasionally bending from the

waist while he spoke to two visitors, and briefly standing twice, once lifting his right leg

to place his foot on his chair, and once lifting his left leg to place his foot on the arm of

the chair, before sitting again. (Id. at 00351.) The investigator also saw DeLong, without

braces, orthopedic support, or apparent difficulty, walking from his porch to his car,

standing in different positions on his porch, at one point swinging his hips from front to

back, walking to the back of the house, and climbing and descending the outside staircase

of another residence. (Id. at 00351-54.) The investigator videotaped DeLong for 21

minutes. (Id. at 00354.)

       In denying benefits to DeLong, Aetna relied on the observations of its investigator

as well as an independent medical evaluation by Dr. Carl Huff. After reviewing

DeLong’s medical records and Aetna’s investigative report, Huff described DeLong’s

spinal stenosis as “an imaging phenomenon that does not correlate with any indication of

neural compression, nor any neural involvement, or any sciatic pain attributable to these

imaging findings.” (Supp. App. 00414.) Comparing DeLong’s descriptions of his

symptoms against his doctors’ findings, as well as DeLong’s ability to ambulate easily

and drive for two hours without apparent difficulty, Huff concluded that “there is no

indication that [DeLong] has suffered any neurologic consequence that would make him

functionally disabled to work.” (Id. at 00415.)

       In sum, although the evidence of DeLong’s disability cut both ways, Aetna did not



                                               5
act arbitrarily or capriciously when it denied DeLong’s claim in reliance on Huff’s review

of the record and its own surveillance reports, including short segments of videotaped

footage. Among other things, Huff concluded that DeLong described his symptoms in a

manner inconsistent with the results of medical examinations and observed activities.

Also, the findings of investigative report, including the videotaped surveillance,

contradicted DeLong’s primary physician’s characterization of DeLong’s physical

infirmaties, as well as some of DeLong’s own statements about the severity of his

disability. Therefore, Aetna’s decision was not irrational or unsupported.

         Lastly, we reject DeLong’s argument that his constitutional rights were violated

because his claim was decided on summary judgment instead of after a trial.3 “[A]

litigant is not ‘deprived’ of a trial . . . upon grant of summary judgment when the

evidence of record at the time of the motion supports its opponent on all key issues and

the nonmovant fails to put in sufficient evidence to create a triable issue of material fact.”

Avia Group Int’l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1561 (Fed. Cir.

1988).

         For the foregoing reasons, we will affirm the District Court’s judgment.



         3
          To the extent that DeLong incorporates an argument that he was entitled to a jury
trial under the Seventh Amendment, we note that he brought an equitable cause of action
for which there is no right to a jury trial. See Pane v. RCA Corp., 868 F.2d 631, 636 (3d
Cir. 1989). We also note that we have held that a Seventh Amendment right to a jury trial
is not violated by summary judgment “so long as the person having the right to the jury
trial is an actual participant in the summary judgment proceeding.” In re TMI Litig., 193
F.3d 613, 725 (3d Cir. 1999). (citations omitted).

                                              6
