Submitted: December 13, 2016
from United States District Court for the Eastern District of
Missouri - St. Louis
WOLLMAN, SMITH,  and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Jones submitted a claim for disability benefits. Her plan
administrator denied it. She sued under the Employee
Retirement Income Security Act (ERISA) for denial of benefits
and breach of fiduciary duty. The district court dismissed
the fiduciary claim as "duplicative" of the
denial-of-benefits claim. It then granted summary judgment
against Jones on the denial-of-benefits claim. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms
in part, reverses in part, and remands.
worked for The Boeing Company as a business and planning
analyst. She was covered by Boeing's employee welfare
benefit plan. The plan provided short-term (up-to-26-weeks)
disability benefits funded by Boeing and administered by
Aetna Life Insurance Company. It also provided long-term
disability benefits funded and administered by Aetna.
October 16, 2013, Jones stopped working and submitted a claim
for short-term benefits. On October 21, rheumatologist Dr.
Francisco J. Garriga submitted an "Attending Physician
Statement" with a primary diagnosis of "ankylosing
spondylitis" (inflammatory arthritis primarily affecting
the spine), and a secondary diagnosis of
"migraines." Dr. Garriga first stated that Jones
could not work through November 4. On October 23, Aetna
approved her claim for short-term benefits effective October
24. Dr. Garriga then extended Jones's unable-to-work
dates many times. Aetna extended her benefits and required
updates from Dr. Garriga. On January 30, 2014, Aetna made
what would be its final extension-through February 17.
February 26, Dr. Garriga extended Jones's unable-to-work
date to April 28. At Aetna's request, he submitted a
"Capabilities and Limitations" worksheet on March
17. It was mostly blank because "no formal testing has
been done - would need PT appointment to accurately
assess." On April 11, chiropractor Dr. Brian Dent
submitted a "Capabilities and Limitations"
worksheet stating that Jones was limited to working two to
four hours per day pending flare-ups.
April 16, Aetna told Jones that her submitted information did
not sufficiently document a level of impairment preventing
her from working. Aetna requested more information. Aetna
then sent Jones's file to Dr. Kia Swan-Moore for review.
Dr. Swan-Moore reviewed the medical records and spoke to Dr.
Garriga, who said "there is no physical clinical reason
[Jones] cannot work however [Jones] continues to tell him
that the pain is so intense she could not concentrate."
Dr. Swan-Moore also tried, unsuccessfully, to contact Dr.
Mahendra Gunapooti, a pain management specialist who Jones
said had treated her. On April 24, Dr. Swan-Moore concluded,
based on the medical records, Jones could work an eight-hour
day for the period of February 17 through May 30 (with
unlimited sitting, standing, and walking, and with some
limits on pushing, pulling, and carrying). On April 28, Aetna
essentially restated Dr. Swan-Moore's conclusions and
told Jones her benefits were terminated effective February
17. The same day, Dr. Gunapooti sent records to Aetna. Those
records showed that Jones reported chronic pain, was on
numerous medications (including painkillers), and received
epidurals. In light of Dr. Gunapooti's records, Dr.
Swan-Moore reviewed her determination and tried to contact
him (but was again unsuccessful). Dr. Swan-Moore reaffirmed
her determination. Aetna reaffirmed its denial.
8, Jones submitted to a functional capacity evaluation by
physical therapist Kevin J. Wilhite. He said Jones
"demonstrated lifting performance that would place her
in the Sedentary Physical Demand Category, " but he was
"ultimately Unable to Classify her ability of work over
an 8 hour work day due to her inability to complete the
aerobic capacity testing" (which he did not conduct
"due to safety concerns of using a treadmill with her
gait performance and use of the cane"). He said, based
on her self-reported pain, he "would not expect her to
tolerate any activity over 2 hours, " and noted that
"Productive Sedentary work for an 8 hour work day would
not be expected based on this date's performance."
Wilhite did say that Jones "demonstrated inconsistent
performance, " including "movement and muscle
recruitment patterns that were inconsistent when aware and
unaware of observation." Aetna concluded that
Wilhite's report did not support a disability finding,
especially due to Jones's reported inconsistent
17, Jones appealed the denial of benefits. She submitted
Wilhite's report and a newer "Attending Physician
Statement" from Dr. Garriga saying that her inability to
work was "ongoing" and she "cannot remain
standing for over 2 hrs." Aetna sent Jones's medical
documentation to Dr. Daniel Gerstenblitt to see if Jones
qualified as disabled between February 18 and April 16. Dr.
Gerstenblitt tried to call Dr. Garriga seven times, leaving
messages that were not returned. Dr. Gerstenblitt stated that
Jones "appears to have chronic neck and back pain,
" determined that her "functional capacity
evaluation was an invalid study and self-limited, " and
concluded that "there is absolutely no reason that she
is incapable for performing in at least a sedentary
position." Aetna denied Jones's appeal on October 8.
On January 19, 2015, Jones asked Aetna to place in her file a
letter from the Social Security Administration granting her
February 2015, Jones sued Aetna, the "Boeing Employee
Health and Welfare Plan, " and the "Employee
Benefit Plans Committee, the Boeing Company." Her
amended complaint had two counts. Count I alleged that Aetna
denied her short-and long-term disability benefits in
violation of 29 U.S.C. § 1132(a)(1)(B). Count II alleged
Aetna breached its fiduciary duty to her as a participant by
(among other things) failing to obtain medical records,
failing to tell her where to send evidence of disability, and
using claims examiners with conflicts of interest, all in
violation of § 1132(a)(3). The district court dismissed
Count II as "duplicative" of Count I, and denied
Jones's motion for discovery on the fiduciary-duty claim.
It then granted summary judgment to Aetna on Count I,