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Geiger v. Aetna Life Insurance Co.

United States District Court, N.D. Illinois, Eastern Division

September 27, 2016

DONNA GEIGER, Plaintiff,


          AMY J. ST. EVE, District Court Judge:

         Defendant Aetna Life Insurance Company has moved for attorneys' fees and costs pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(g)(1), and Federal Rule of Civil Procedure 54. For the following reasons, the Court grants in part and denies in part Aetna's amended motion [72].


         The Court presumes familiarity with the facts of this case, which it recounted in detail in its June 24, 2016 Opinion denying Plaintiff Donna Geiger's (“Geiger”) motion for summary judgment and granting Aetna's cross-motion for summary judgment. (R. 61.) The Court, however, briefly summarizes the facts before commencing its analysis.

         Geiger sued Aetna under ERISA seeking long-term disability benefits under an employee welfare benefit plan (the “Plan”). (Id. at 1-2.) In October 2009, Geiger left her job at Sprint Nextel claiming a disability due to “lumbar back pain with subsequent L5-S1 discectomy and bilateral ankle pain with evidence of avascular necrosis of the talar bones bilaterally.” (Id. at 5.) An October 2009 report from Dr. Ami Kothari confirmed Geiger's diagnosis of “avascular necrosis of the right talus” and “bilateral ankle pain.” (Id.) On April 5, 2010, Dr. James DeOrio diagnosed Geiger with “bilateral talar avascular necrosis, ” which led to Geiger undergoing a left ankle arthroscopy and full ankle replacement in December 2010. (Id. at 5-6.) In April 2010, Aetna approved Geiger's claim for long-term disability benefits, concluding that she was disabled from her own occupation as an account executive. (Id. at 6.) That same month, the Social Security Administration approved Geiger's request for Social Security benefits for herself and her dependent minor son. (Id. at 7.)

         In August 2012, however, Aetna informed Geiger that she no longer met the Plan's disability definition. (Id.) Geiger appealed, and, in May 2013, Aetna overturned its decision. (Id. at 8-9.) Aetna reinstated Geiger's long-term disability benefits, concluding that she met the definition of being totally disabled from any gainful occupation. (Id. at 9.) As part of its review process, Aetna had engaged two doctors, Malcolm McPhee and Robert Cirincione, to perform independent physician peer reviews of Geiger's medical files. (Id. at 8.) While Dr. McPhee concluded that Geiger's ankle condition would not preclude her from performing sedentary work, Dr. Cirincione disagreed. (Id. at 8-9.)

         Later, in May 2014, Aetna terminated Geiger's long-term disability benefits for the second time. (Id. at 10.) Aetna based this decision on a number of factors including (1) video surveillance footage showing Geiger driving a car, climbing in and out of the driver's seat of a Sport Utility Vehicle, shopping and walking with a normal gait, and not demonstrating outward signs of pain; (2) physician reviews of Geiger's medical history; (3) a nurse's clinical review of Geiger's medical file; and (4) a “transferrable skills assessment” to determine if any reasonable occupation existed for which Geiger was suited. (Id. at 10-15.)

         Geiger appealed, relying on evidence that included various witness statements as well as reports from Dr. Luz Feldman, a pain treatment specialist; Dr. Debjani Roy, Geiger's primary care physician; and Dr. Mina Foroohar, a neurosurgeon. (Id. at 15.) Based on a July 2014 appointment, Dr. Feldman noted Geiger's persistent neck pain as well as the recent success of Geiger's pain treatment. (Id.) Dr. Foroohar reported that, based on an October 2014 appointment, Geiger suffered from “[c]ervical spondylosis with stenosis, most significant at ¶ 5/6 and C6/7. EMG with C5/6 and C6/7 and C7/8 radiculopathy. [Geiger] can consider surgery to include anterior cervical discectomy C5/6 and C6/7 with removal of osteophytes with allograft fusion with plating and instrumentation.” (Id. at 16.)

         Aetna engaged Dr. Daniel Gutierrez, a neurological surgeon, to complete an independent physician peer review. (Id. at 17.) He concluded that, based on the surveillance videos as well as Geiger's medical records, (1) Geiger did not have “any profound functional impairments that are conclusively shown, ” and (2) she could stand, sit, and use her arms, hands, and fingers consistently for an eight-hour day. (Id. at 19.) After receiving Dr. Gutierrez's analysis, Aetna reached out to Geiger's doctors for comment. (Id. at 20.) Dr. Feldmann responded by noting that Geiger's level of activity in the surveillance footage was a result of substantial amounts of pain medication, that she should not stand or walk for more than fifteen minutes per hour, and that Dr. Gutierrez did not include Geiger's acute cervical radiculopathy in his report. (Id.) Dr. Gutierrez then completed another report in which he did not alter his original conclusion after taking into account Dr. Feldmann's concerns. (Id. at 21.)

         In February 2015, after reviewing Geiger's arguments and supporting materials, Aetna denied her appeal. (Id.) Geiger then filed the current lawsuit that resulted in the Court granting summary judgment to Aetna in a thirty-seven-page opinion. (Id. at 37.) Geiger has since appealed to the Seventh Circuit, and Aetna has brought the current motion for $40, 000 in attorneys' fees[1] and $17.50 in costs for postage. (R. 72, Def.'s Am. Mot. Attorney's Fees, at 1, 13.)


         I. Attorneys' fees

         In ERISA actions “by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1); see Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 244 (2010); Temme v. Bemis Co., 762 F.3d 544, 547 (7th Cir. 2014) (per curiam).[2] “[A]s long as the fee claimant has achieved some degree of success on the merits, ” a court's discretion to award that claimant fees is “considerable.” Chesemore v. Fenkell, Nos. 14-3181, 14-3215, 15-3740, 2016 WL 3924308, at *10 (7th Cir. July 21, 2016) (published opinion) (internal quotation marks omitted) (quoting Hardt, 560 U.S. at 245); see also Temme, 762 F.3d at 549.

         The Seventh Circuit has recognized two tests that district courts may use to guide their discretion when considering a motion for attorneys' fees under ERISA. Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. Coll. of Wis., Inc., 657 F.3d 496, 505-06 (7th Cir. 2011); Pa. Chiropractic Ass'n v. Blue Cross Blue Shield Ass'n, No. 09 C 5619, 2016 WL 2958323, at *2 (N.D. Ill. May 23, 2016) (published opinion) (citing Temme, 762 F.3d at 550), appeal docketed, No. 16-2845 (7th Cir. July 1, 2016). The first test weighs “whether the position of the party against whom the fees are sought was ‘substantially justified, '” Temme, 762 F.3d at 549; Kolbe, 657 F.3d at 506, meaning “justified to a degree that could satisfy a reasonable person, ” Kolbe, 657 F.3d at 506 (quoting Trustmark Life Ins. Co. v. Univ. of Chi. Hosps., 207 F.3d 876, 884 (7th Cir. 2000)). A “substantially justified” position is “something more than non-frivolous, but something less than meritorious-and taken in good faith.” Jackman Fin. Corp v. Humana Ins. Co., 641 F.3d 860, 866 (7th Cir. 2011); Pa. Chiropractic, 2016 WL 2958323, at ...

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