United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE, District Court Judge:
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 .
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.
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.)
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.)
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.)
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.)
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.)
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'
and $17.50 in costs for postage. (R. 72, Def.'s Am. Mot.
Attorney's Fees, at 1, 13.)
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). “[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.
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