Berkoben v. Aetna Life Insurance (8 F. Supp. 3d 689, 2014)

MEMORANDUM ORDER

MARK R. HORNAK, District Judge.

The Complaint in the above captioned case was received by the Clerk of Court on November 15, 2012, and was referred to United States Magistrate Judge Lisa Pupo Lenihan for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rules of Court 72.C and 72.D.

The Magistrate Judge’s Report and Recommendation (ECF No. 35), filed on February 21, 2014, recommended that Plaintiffs Motion for Summary Judgment (ECF No. 21) be granted in part and denied in part. The Report and Recommendation recommended that Plaintiffs Motion for Summary Judgment be denied to the extent it seeks reversal and retroactive reinstatement of his long-term disability benefits, and be granted in all other respects. The Report and Recommendation further recommended that Defendant’s Motion for Summary Judgment (ECF No. 22) be denied, and that Aetna’s decision to terminate Plaintiffs long-term disability benefits be vacated and the case remanded to the plan administrator for further consideration in light of the Report and Recommendation.

Service of the Report and Recommendation was made on all counsel of record via electronic mail. The parties were informed that in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, that they had fourteen (14) days to file any objections. Defendant filed objections to the Report and Recommendation on March 7, 2014 (ECF No. 36). Plaintiff filed a response to the objections on March 19, 2014 (ECF No. 37). The Court also permitted, and has considered, a reply brief in support of the Objections filed by the Defendant. (ECF No. 40).

This Court has carefully considered the Defendant’s Objections in light of the Report and Recommendation, the Plaintiffs response to those Objections, the Defendant’s Reply Brief, and its own review of the administrative record filed on the docket of this Court, and concludes that they do not impeach or otherwise undercut the reasoning of the Report and Recommendation. In particular, this Court would note the following.

The Defendant objects that the Chief Magistrate Judge made an erroneous “finding” regarding the reasons that the Plaintiff did not submit to the Defendant the results of an MRI test because such reasons were not in the administrative record. That MRI test is simply not relied upon in the reasoning and analysis portion of the Report and Recommendation, and second, it had nothing to do with this Court’s adoption of it. Further, it does not appear that the MRI, the absence of its results, the reasons for that, or anything else about an MRI was considered in any of the decisional communications from the Defendant to the Plaintiff.

As to the balance of the Objections, they each/all suffer from the same core deficiency, namely they do not confront the failure of the Defendant, in the administrative process, to address the actual and complete language of its own Long-Term Disability (“LTD”) Policy (“Policy”), and in particular, the specific language of the coverage exclusion upon which the Defendant focused and relied in terminating the Plaintiffs coverage after twenty-four (24) months.

Under the relevant provisions of that Policy, a disability is excluded from coverage after twenty-four (24) months if it is primarily caused by “[a] mental health or psychiatric condition ... but excluding conditions with demonstrable, structural brain damage; ... ”. Policy at 87 (emphasis added). The problem with the Objections is that they fail to address the reality that in each of the denial/appeal denial letters prepared and transmitted by the Defendant to the Plaintiff or his counsel, the Defendant recites that the Plaintiffs condition is a “mental health” issue, although the Defendant also acknowledged the growing weight of medical authority that Plaintiffs condition had an organic genesis. The Defendant’s administrative actions never specifically address or state that Plaintiffs “mental health” condition was (or was not) one with “demonstrable, structural brain damage”. Thus, those administrative decisions did not address the application of that proviso to the exclusion, and therefore failed to address the Policy exclusion relied upon by the Defendant in toto. This is compounded by the record fact that the medical and legal submissions made to the Defendant on the Plaintiffs behalf do raise the application of that Policy exclusion proviso, and also provided substantial medical literature as to its application here. The administrative record does not reflect the necessary consideration of those matters by the Defendant.

In addition, when the Defendant’s administrative decisions and related communication did acknowledge the referenced medical literature that would support an organic or structural relationship to Plaintiffs condition, rather than analyzing or even explaining the consideration and any rejection of it, the Defendant’s position instead reverted to a generalized reference to the fact that the DSM considers the Plaintiffs afflictions to be “mental”, a point that Plaintiff does not seem to contest.

The problem is that that point that is not the point of the issue. This is particularly problematic, in that the Defendant’s seemingly categorical resort to the DSM classification, and to its consideration of its own self-generated listing (the “List”) of what diagnosis codes it will consider to be non-excluded and those which it will not, also demonstrates a failure to consider the specific situation that the Plaintiffs case presents. This is exacerbated by the undisclosed nature of the List to participants under the Policy, one not cured by essentially oblique references to it in certain portions of the administrative record, nor by its disclosure to Plaintiffs counsel relatively late in the game.

For these reasons, and those set forth in greater detail in her Report and Recommendation, the conclusions and reasoning of the Chief Magistrate Judge will be adopted by this Court because they are correct. Therefore, after a de novo review of the pleadings and documents in the case, together with the Report and Recommendation, the Defendant’s Objections and Plaintiffs Response thereto, along with the Defendant’s Reply, the following Order is entered:

AND NOW, this 25th day of March, 2014,

IT IS HEREBY ORDERED that Plaintiff s Motion for Summary Judgment (ECF No. 21) is granted in part and denied in part. Plaintiffs Motion for Summary Judgment is DENIED to the extent it seeks reversal and retroactive reinstatement of his long-term disability benefits, and is GRANTED in all other respects.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 22) is DENIED.

IT IS FURTHER ORDERED that Aet-na’s decision to terminate Plaintiffs long-term disability benefits is VACATED and the case is REMANDED forthwith to the Plan Administrator for further prompt and complete consideration in light of the Report and Recommendation,

IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 35) of Chief Magistrate Judge Lenihan, dated February 21, 2014, is adopted as the Opinion of the Court.

REPORT AND RECOMMENDATION

LISA PUPO LENIHAN, United States Chief Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that Plaintiffs Motion for Summary Judgment (ECF No. 21) be granted in part and denied in part. It is recommended that Plaintiffs Motion for Summary Judgment be denied to the extent it seeks reversal and retroactive reinstatement of his long-term disability benefits, and be granted in all other respects. It is further recommended that Defendant’s Motion for Summary Judgment (ECF No. 22) be denied. It is further recommended that Aetna’s decision to terminate Plaintiffs long-term disability benefits be vacated and the case remanded to the plan administrator for further consideration in light of this Report and Recommendation.

II. REPORT

Currently before the Court for disposition are cross-motions for summary judgment in this ERISA action brought under 29 U.S.C. § 1132(a)(1)(B) for review of a termination of long-term disability benefits. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). Venue in this District is proper pursuant to 28 U.S.C. §§ 1891(b)(1) & (c)(2).

A. STATEMENT OF RELEVANT FACTS

Plaintiff, Jason Berkoben, was employed by Dell, Inc. as a computer programmer. As an employee of Dell, Berkoben was a participant in a long-term disability plan (“Plan”), which was insured by an insurance pohcy (“Pohcy”) issued to Dell by Defendant, Aetna Life Insurance Company (“Aetna”). The Plan grants Aetna discretionary authority to “determine whether and to what extent eligible employees and beneficiaries are entitled to benefits and to construe any disputed or doubtful terms under this Pohcy, the Certificate or any other document incorporated herein.” (Berkoben Pohcy 074.) The Pohcy and Plan further provide that Aetna “shah be deemed to have properly exercised such authority unless we abuse our discretion by acting arbitrarily and capriciously.” Id. Aetna also reserved the “right to adopt reasonable policies, procedures, rules, and interpretations of this Pohcy to promote orderly and efficient administration.” Id.

Berkoben commenced employment with Dell on or about May 2, 2007, and at all material times, was a covered beneficiary under the Plan. On or about March 3, 2010, Berkoben ceased working due to Schizoaffective Disorder and Bipolar Disorder. (LTD 36-37, 322.) His treating psychiatrist at the time, Dr. Lekhwani, recommended that he stay home from work due to a “psychiatric illness.” (STD 170.) Berkoben informed Dell that his “illness is mental in nature.” (STD 166.)

On July 15, 2010, Aetna notified Berko-ben about the 24 month limitation on LTD benefits for mental illness. (LTD 18.)

Berkoben was initially approved for short term disability benefits for 180 days, and beginning on August 29, 2010, his claim for long-term disability (LTD) benefits was approved by Aetna. Dell’s Group Long Term Disability Plan provides for payment of 60% of an employee’s salary in the event of total disability, less offsets, including any Social Security benefits paid. On August 29, 2010, Berkoben began receiving from Aetna monthly LTD benefits in the amount of $3,230.00. On or about December 8, 2010, Berkoben was notified that he was approved for Social Security Disability Indemnity (“SSDI”) benefits. Following receipt of the SSDI award, Ber-koben’s LTD benefits were offset by his SSDI benefits, and he received $2,080 in monthly LTD benefits from Aetna.

From August 2010 until June of 2012, Berkoben’s treating psychiatrist, Mary Galonski, M.D., provided Aetna with multiple Behavioral Health Clinical Statements, contemporaneous office notes and disability forms, in which she consistently opined that Berkoben was unable to work due to Schizoaffective Disorder. (LTD 343-44, 350-51, 366-68, 369-71, 380-82, 403-05.) Aetna has never questioned that Berkoben suffers from Schizoaffective Disorder.

Throughout this time period, Berkoben’s treatment consisted exclusively of medication management and individual psychotherapy. (LTD 145, 152,155,161-62,171-72, 320-23, 326-29, 330-33, 337-42, 344, 346-48, 351-55, 376-79, 382, 405, 651, 658.) Medical records regularly refer to Berko-ben as being treated for “schizoaffective disorder,” “unspecified psychosis,” and “observation of other suspected mental condition” with ICD-9 code numbers of 295.7, 298.9 and V71.09, respectively. (LTD 170, 321-22, 327, 331-32, 341, 347, 353, 357, 360, 363, 373, 377, 390, 396, 400, 597.) Also during this period, Berkoben was taking prescription anti-psychotic and mood stabilizing medications, including Ability, Lithium, Risperdal and Zyprexa to control his symptoms of schizoaffective disorder (LTD 321, 327, 331, 340, 347, 353, 356, 362, 372, 376, 389, 395, 399), although at times he was not compliant with his medication as prescribed (LTD 321, 362, 396, 399). He also took Prilosec and was prescribe Zocor to treat high cholesterol. (LTD 372.)

Berkoben’s symptoms were mental in nature, including episodes of major depression, auditory and visual hallucinations, delusions, flight of ideas, suicidal ideation, anxious and fearful thoughts, depressed mood and signs of psychosis and mania. (LTD 320, 389-402.) The only physical diagnoses indicated in the treatment notes or on physician statements completed for Aetna included GERD, high cholesterol, and pneumonia. (LTD 322, 332.) Berko-ben confirmed that his disability was only due to his mental nervous diagnosis. (LTD 162.) He stated that his obstacles to returning to work consisted of “mental issues” and maintained that he had no physical impairments accompanying his mental illness. (LTD 129,145.)

On March 2, 2012, Aetna again notified Berkoben of the impending 24 month limitation period for mental health conditions and informed him that the claim would be closed effective August 28, 2012. (LTD 292.)

Although Berkoben notified Aetna on May 14, 2014 that he had recently had a brain MRI and intended to forward it for review (LTD 172-73), the MRI had nothing to do with his schizoaffective or bipolar disorders, but rather, was prescribed for a problem he was having with black outs, and therefore, Berkoben never forwarded the MRI to Aetna. To date, Berkoben has not produced any diagnostic studies, clinical findings, or other medical evidence showing that he personally suffers from “demonstrable, structural brain damage.” Dr. Galonski’s May 20, 2012 treatment note indicates that Berkoben would be required to show brain damage in order to continue to receive benefits (LTD 394), and on June 6, 2012, Dr. Galonski stated that Berkoben had “no physical problems” (LTD 399).

On June 14, 2012, Berkoben’s counsel submitted a representation and Intent to Appeal letter to Aetna, challenging the applicability of the 24 month mental health limitation and requesting a copy of the entire claims file. (LTD 579-82.) On July 9, 2012, Aetna consulted Dr. Elena Men-delssen, M.D., for clarification as to whether Berkoben’s condition fell within the 24-month limitation period. (LTD 193.) Dr. Mendelssen opined that Berkoben’s diagnosis of schizoaffective disorder did not appear on Aetna’s Mental Nervous Limitations and Exclusions List, and therefore, was not excluded from the 24-month mental illness limitation. (LTC 193, 781-782.) Jeffrey Burdick, LCSW, from Aetna’s Behavioral Heal Unit, reviewed this information and agreed with Dr. Mendelssen that Berkoben’s diagnosis of schizoaffective disorder, ICD-0 code no. 295.7, did not appear on Aetna’s Mental nervous Limitations and Exclusions List, and that the 24-month mental illness limitations applied. (LTD 186,199.)

On July 10, 2012, Aetna sent a letter to Berkoben’s counsel, informing him that Berkoben’s LTD benefits were being terminated effective 8/28/12 (“termination letter”):

A view of your file shows you became disabled on 3/2/2010. Your entitlement for LTD benefit (sic) began on 8/29/10, and we find you disabled thru 8/28/2012, the maximum 24 months end of benefit [ ] date, as described in the above contractual provision. The diagnosis of Schizoaffective Disorder is considered a mental health or psychiatric condition and therefore has 24 month max benefit duration. You will not be eligible for benefits beyond 8/28/2012.

(LTD 302.) In its termination letter, Aet-na also advised Berkoben of his right to appeal and to submit additional information, including but not limited to, a detailed narrative report beginning 8/28/2012 through present; physician’s prognosis; proof of confinement as an inpatient in a hospital or treatment facility; diagnostic studies; clinical findings; and any other relevant information or documentation specific to his schizoaffective disorder. (LTD 302.) Aetna also distinguished Ber-koben’s SSDI award based upon the difference in standard, lack of an explanation of the decision or information upon which it was based, and therefore, it was unable to give the SSDI award significant weight. (LTD 302.)

Berkoben’s Administrative Appeal

By letter dated September 20, 2012, Berkoben appealed Aetna’s termination of his LTD benefits. (LTD 297-99.) Inasmuch as Aetna was not contesting Berko-ben’s disability status, the sole issue on appeal was whether Berkoben’s disability, i.e., Schizoaffective Disorder, fell outside the Plan’s 24 month limitation for a mental health disability. Berkoben attached to his appeal medical literature and documentation, including a narrative summary from Dr. Galonski, to support his position that Schizoaffective Disorder and Bipolar Disorder are biological diseases of the brain, and thus fall outside Aetna’s 24 month mental health limitation under the Plan. (LTD 457-566.) He did not provide Aetna with any diagnostic studies, clinical findings, or other medical evidence showing the he had demonstrable, structural brain damage.

In considering Berkoben’s appeal, Aetna forwarded his file for further review to independent physicians specializing in Physical Medicine and Psychiatry. (LTD 296.) In particular, Aetna had the claims file reviewed by Stephen Gerson, M.D., board certified in psychiatry, on October 31, 2012, and Stuart Rubin, board certified in physical medicine, on October 25, 2012. (LTD 307-311, 314-316.) Aetna also requested a peer-to-peer telephonic consultation with Dr. Galonski, which was conducted by Dr. Rubin on October 11, 2012. Berkoben LTD File 000296. Aetna also noted that the medical records submitted for its review indicated that Berkoben was receiving treatment for Schizoaffective Disorder and Bipolar Disorder, and Dr. Galonski observed that he appeared aware of his delusions and was struggling against them, was withdrawn and exhibited destructive thoughts towards his neighbors, and showed indications of cognitive issues. Id.

Aetna denied Berkoben’s appeal by letter dated November 2, 2012 (“final denial letter”), in which the following explanation is provided by the senior appeal specialist for Aetna:

In your appeal request letter, submitted on behalf of your client, you provide your opinion that Mr. Berkoben’s LTD benefits should not be subject to the 24 month maximum benefits, because his disabling condition [is] biological and not mental nervous condition. We agree that there is emerging clinical evidence that the conditions of schizophrenia and bipolar illness have a biological basis. However, the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association still classifies these conditions as mental nervous conditions.

Based upon our review of the information you provided, and as explained in more detail above, we have determined that Mr. Berkoben’s conditions continue to be classified as mental nervous conditions, as of March 2, 2010 and August 29, 2012. Therefore, the original decision to terminate your client’s LTD benefits, due to the policy maximum, effective August 29, 2012, has been upheld ....

(LTD 295-296.)

Berkoben exhausted the administrative remedies provided by the Plan. He then instituted the present action against Aetna on November 15, 2012 under Section 502(a)(1)(B) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), seeking LTD benefits from the Plan. The Court ordered the parties to file cross motions for summary judgment, along with a certified copy of the administrative record. The parties have complied and thus, the motions are ripe for review.

B. STANDARD OF REVIEW— CROSS-MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party’s case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

More specifically, the moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita court). An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When the parties have filed cross-motions for summary judgment, as in this case, the summary judgment standard remains the same. Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D.Pa.2006). “When confronted with cross-motions for summary judgment, ... ‘the court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.’ ” Id. (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed.Appx. 266, 270 (3d Cir.2006)). “If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts.” Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.1998)).

C. RELEVANT PLAN LANGUAGE

The Plan provides in relevant part:

Test of Disability

After the first 24 months of your disability that monthly benefits are payable, you meet the plan’s test of disability on any day that:

• You cannot perform the material duties of your own occupation solely because of an illness, injury or' disabling pregnancy-related condition; and

• Your earnings are 80% or less of your adjusted predisability earnings.

After the first 24 months of your disability that monthly benefits are payable, you meet the plan’s test of disability on any day you are unable to work at any reasonable occupation solely because of an illness, injury or disabling pregnancy-related conditions.

(Berkoben Policy 85) (emphasis in original). The Plan further provides:

Limitations Which Apply to Long Term Disability Coverage

You will no longer be considered as disabled and eligible for long term monthly benefits after benefits have been payable for 24 months if it is determined that your disability is primarily caused by:

• A mental health or psychiatric condition, including physical manifestations of these conditions, but excluding conditions with demonstrable, structural brain damage; or

• Alcohol and/or drug abuse.

(Berkoben Policy 87) (emphasis in original).

D. MEDICAL EVIDENCE & OTHER DOCUMENTS CONSIDERED BY AETNA ON APPEAL

1. Report of Dr. Mary Galonski

In support of his appeal of the termination of his LTD benefits, Plaintiff submitted a letter dated September 5, 2012 to Aetna from his treating psychiatrist, Dr. Mary Galonski, M.D., who opines that “it is widely accepted within the medical community that schizophrenia and bipolar disorder, which are both present in Jason’s case, are biological diseases of the brain.” (LTD 458.) In support of her conclusion, Dr. Galonski observes that Plaintiff has been receiving treatment at the Family Counseling Center since March of 2010, where she sees him on a monthly basis. (LTD 457.) She further notes that Plaintiff “has diagnosis of schizoaffective disorder which is a condition where a person has all the criteria for schizophrenia as well as episodes meeting criteria for a mood disorder — in Jason’s case that of a bipolar disorder.” Id. Dr. Galonski further notes Plaintiff still exhibits symptoms consisting of:

visual and auditory hallucinations, paranoia ideas of reference, sleep disturbance, energy fluctuations with periods of very high energy alternating with low energy periodically[;] ... periods of taking on many projects simultaneously but being frustrated in not being able to concentrate to complete them effectively!;] ... intermittent! ] ... suicidal and homicidal thoughts and still struggles regularly with anger and rage.

Id. Dr. Galonski also reported that Plaintiff “still is very impaired by his symptoms and periodically has to stay at home or leave a setting such as a store when his anger is flaring up or when delusional thoughts are strong.” Id. With regard to his schizoaffective disorder, Dr. Galonski opines that Plaintiff “meets the DSM IV criteria for schizophrenia with his hallucinations and delusion being present as well as them resulting in significant social and occupational dysfunction and having duration of at least 6 months. These have been present even when his mood is stable. He also [meets] criteria for a mixed Bipolar illness with symptoms of mania & depression at the same time.” (LTD 457-458.)

In addition, Dr. Galonski reported that Plaintiff has tried a number of prescription medicines to treat his conditions, including Zyprexa, which game him some improvement in psychotic symptoms while not completely alleviating them, but gave him unacceptable fatigue and weight gain; Lithium and Risperdal, which were of limited benefit; and Ability, which actually heightened his anger. (LTD 457.)

Dr. Galonski then discusses the results of research on the relationship between schizophrenia and brain damage:

Much research has shown that brain scans of schizophrenics show results consistent with brain damage and dopamine over activity. In over 100 studies, Computerized axial tomography or CAT scans and magnetic resonance imaging or MRI scans show much larger ventricles in the brains of schizophrenics compared to controls which suggest diffuse neuronal damage and loss of cells. Positron emission tomography or PET scans show that brin metabolic activity in a psychotic episode is lower than that of controls. They also have shown that schizophrenics have more D2 receptors in their brain than controls. Accumulating evidence from such studies suggest that psychosis, such as seen in schizophrenia, is associated with neuropatholo-gy of the frontal and temporal systems at both the gross anatomical and also the neuronal level. Several neurotransmitters appear involved in the symptoms that someone with schizophrenia present with including: dopamine serotonin, glutamate, N-methy-D-aspara-tate or NMDA and gamma-amino butyric acid.

(LTD 458.) Dr. Galonski goes on to opine: Similarly with the bipolar portion of Jason’s illness there is also ample evi-denee of brain alteration and dysfunction including in the manic phases, heightened activity of the left hemisphere prefrontal-cortical — sub cortical system that includes the caudate and anterior cingulate. In the depressed phase there appears to be attenuation of the orbito prefrontal area. Subjects with bipolar disorder exhibit lateral ven-triculomegaly coupled with accompanying volumetric deficiencies in prefrontal cortical areas.

Id. Dr. Galonski then cites to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (2000) (“DSM-IV-TR”), which she submits “is psychiatry’s current standard reference for all mental disorders!.]” Id. Dr. Galon-ski quotes the following passage from the DSM-IV-TR on associated laboratory findings with regard to schizophrenia:

In terms of functional brain imaging studies, hypoffontality (i.e., a relative decrease in cerebral blood flow, metabolism, or some other proxy for neural activity) continues to be the most consistently replicated finding. However, there is increasing recognition that functional abnormalities are unlikely to be limited to any one brain region, and most of the more recent studies suggest more widespread abnormalities involving cortical-subcortical circuitry.

Id. (quoting DSM-IV-TR at 305). In associated laboratory findings for manic episodes, Dr. Galonski finds that the DSM-IV-TR similarly reports that:

a variety of laboratory findings have been noted to be abnormal in groups of individuals with manic episodes compared with control subjects .... (including) polysomnographic abnormalities and increased Cortisol secretion. There may be abnormalities involving the no-repinephrine, serotonin, acetylcholine, dopamine, or gamma-aminobutyric acid neurotransmitter systems.”

Id. (quoting DSM-IV-TR at 359-60). Based on this research and the quoted passages from the DSM-IV-TR, Dr. Gal-onski concludes that “it is widely accepted within the medical community that schizophrenia and bipolar disorder, which are both present in Jason’s case, are biological diseases of the brain.” Id.

2. Medical Research/Articles Attached to Dr. Galonski’s Report

In support of her opinion, Dr. Galonski attached to her 9/5/12 Report the following medical literature and research articles:

Schizophrenia is a Disorder of the Brain

Evidence That Schizophrenia is a Brain Disease (2009)

Structural Brain Deficits in Schizophrenia (1981)

The Effects of Schizophrenia on the Brain (2003)

Is Psychosis a Neurobiological Syndrome (2001)

Structural Brain Lesions in Schizophrenia — Magnetic Resonance Imaging on a Mid Field Magnet (2006)

(LTD 459-566.) For example, in “Schizophrenia is a Disorder of the Brain,” the author states that “[s]ince the early 1980s, with the availability of brain imaging techniques and other developments in neuroscience, the evidence has become overwhelming that schizophrenia and manic-depressive disorder are disorders of the brain[,]” and that “[flndividuals with schizophrenia ... have a reduced volume of gray matter in the brain, especially in the temporal and frontal lobes.... Patients with the worst brain tissue loss also had the worst symptoms, which included hallucinations, delusions, bizarre and psychotic thoughts, hearing voices, and depression.” Dr. E. Fuller Torrey, Schizo- pkrenia is a Disorder of the Brain, http:// www.schizophrenia.com/disease.htm. (ECF No. 1-11 at 2; LTD 509-514.) In addition, Dr. Torrey noted that individuals with schizophrenia “typically have enlarged ventricles in the brain, as demonstrated by over 100 studies to date.” Id. (ECF No. 1-11 at 3.) Dr. Torrey further noted that individuals with schizophrenia and manic-depressive disorder “have more neurological abnormalities ... and have more neu-ropsychological abnormalities that impair their cognitive function, including such things as information processing and verbal memoryf,]” and “[individuals with manic-depressive disorder have an enlarged amygdala and increased numbers of white matter hyperintensities.” Id. (ECF No. 1-11 at 4.)

Similarly, the authors of “Evidence That Schizophrenia is a Brain Disease” report that “[d]ata from modern scientific research proves that schizophrenia is unequivocally a biological disease of the brain, just like Alzheimer’s Disease and Bipolar Disorder .... modern non-invasive brain imaging techniques such as Magnetic Resonance Imaging (MRI) and Computerized Tomography (CT) have documented structural differences between schizophrenic and normal brains[, with] individuals with schizophrenia [showing] 25% less volume of gray matter in their brains.” Rashmi Nemade, Ph.D. & Mark Dombeck, Ph.D., Evidence That Schizophrenia is a Brain Disease, Aug. 7, 2009, http://www.mentalhelp.net/poc/viewdoc. php?type=doc&id=8812&cn=7. (ECF No. 1-11 at 14; LTD 459-460.)

The remaining articles submitted by Dr. Galonski in support of her opinion likewise support that brain damage is associated with schizophrenia. See, e.g., Charles J. Golden, PhD, Benjamin Graber, MD, Jeffrey Coffman, MD, Richard A. Berg, PhD, David B. Newlin, PhD, & Solomon Bloch, MD, Abstract: Structural Brain Deficits in Schizophrenia-Identification by Computed Tomographic Scan Density Measurements, Sept. 1981, vol. 38, No. 9, available at http://archpsyc.jamanetwork.com/ article.aspx?volume=38&issue=9&page= 1014 (LTD 461-464) (CT scan levels showed lower density in anterior left-hemisphere of schizophrenic brains as compared to normal brains); Adina Cazaban, The Effects of Schizophrenia on the Brain, http://serendip.brynmawr.edu/bb/neruo/ neuro03/web2/acazaban.html, last modified 4/26/03 (ECF No. 11-1 at 18) (neurological studies show widespread abnormalities in structural connectivity of brains of schizophrenics); Daryl E. Fujii, PhD & Iqubal Ahmed, MD, Is Psychosis a Neurobiological Syndrome?, Can. J. Psychiatry, Vol. 49, No. 11, Nov. 2004 (LTD 483-88) (current evidence strongly indicates that schizophrenia and other psychosis are brain disorders); S.R. Parkar, R. Seetha-lakshmi, & H. Shah, Structural Brain Lesions in Schizophrenia-Magnetic Resonance Imaging on a Mid Field Magnet, Indian J. Radiol. Imag. 2006 16:3:299-301 (Aug.2006) (LTD 489-91) (brain damage associated with schizophrenia has been established beyond doubt).

3. Report of Dr. Stephen Gerson

In considering Plaintiffs appeal of its decision to terminate his LTD benefits, Aetna requested a physician medical record review by Dr. Stephen Gerson, board certified in psychiatry, which was conducted on October 31, 2012. (LTD 307-311.) In conducting this review, Dr. Gerson considered inter alia Plaintiffs medical records/office notes and Behavioral Health Clinician Statements from Dr. Galonski, Aetna’s 7/10/12 termination letter, Dr. Gal-onski’s letter dated 9/5/12 with attached articles; and Plaintiffs 9/20/12 appeal letter. (LTD 308.) Dr. Gerson did not examine or interview Plaintiff as part of his review.

After detailing Plaintiffs treatment history (LTD 308-310), Dr. Gerson addressed Aetna’s referral question, “In your opinion, is the disabling condition a medical condition or mental/nervous?”, to which Dr. Gerson provided the following response:

From the record the claimant’s provider and attorney are claiming that the disease is neurobiological in basis, and therefore compensable. There is emerging clinical evidence that schizophrenia and bipolar illness have a biological basis and furthermore, and ALSO there is emerging'evidence that MOST mental nervous conditions in the DSM-IV have a neurobiological basis.

Nonetheless, conventional nomenclature, i.e., the DSM-IV, is a compendium for diagnoses that are considered by those in the field to fall within the classification of “mental nervous.” Though we have no clinical evidence to validate impairment from 8/30/12 to 11/5/12, I would opine that up to 6/6/12 the claimant was impaired as his thoughts, feeling, and behavior were out of control. His diagnoses at that time where schi-zoaffective disease. This appears in DSM-IV as a mental nervous condition. Again, in my view although his condition has a neurobiological basis, by conventional nomenclature it is considered a “mental nervous” disorder within the DSM-IV nomenclature.

(LTD 310.)

4. Report of Dr. Stuart Rubin

In addition, Aetna requested a physician medical record review by Dr. Stuart Rubin, board certified in physical medicine, in considering Plaintiffs appeal of its decision to terminate his LTD benefits. (LTD 314-316.) Dr. Rubin, who conducted his review on October 25, 2012, also considered inter alia Plaintiffs medical records/office notes and Behavioral Health Clinician Statements from Dr. Galonski, Aetna’s 7/10/12 termination letter, Dr. Gal-onski’s letter dated 9/5/12 with attached articles; and Plaintiffs 9/20/12 appeal letter, and did not examine or interview Plaintiff as part of his review. (LTD 315.)

On October 11, 2012, Dr. Rubin conducted a peer-to-peer telephonic consultation with Dr. Galonski, who reported during the consultation that Berkoben suffered from hallucinations, sedation, and poor concentration and was unable to work, but noted that pain was not an issue. (LTD 296, 315.)

After detailing Plaintiffs treatment history (LTD 315), Dr. Rubin addressed Aet-na’s referral questions. In response to the question, “Based on the provided documentation and telephonic, consultation, ... provide a detailed description of the claimant’s functional impairments, if any, from 8/28/12 through 10/24/2012”, Dr. Rubin stated:

From a musculoskeletal point of view, it is the opinion of this reviewer the claimant does not have functional impairments from 8/28/12 to 10/24/12. Review of the records does indicate the patient has a severe schizoaffective disorder which according to Dr. Galonski precludes working.

(LTD 315-316.) In response to Aetna’s second question, “In your opinion, in (sic) this claimant’s condition a mental health condition, or a medical condition?”, Dr. Rubin responded, “It is the opinion of this reviewer the claimant’s condition is a mental health condition which can be considered a medical condition but not a muscu-loskeletal condition.” (LTD 316.)

5. Aetna’s Mental/Nervous limitations and Exclusions List

In its claim file, Aetna refers to its “Mental/Nervous Limitations and Exclusions List Effective 01/01/2008” (“Aetna’s List” or the “List”), which appears to be a confidential, internally generated, document that Aetna relied upon in determining that the 24-month mental/nervous limitation should be applied to Berkoben’s LTD benefits. (LTD 186, 781-784.) Aet-na’s List shows in Table 1, ICD-9 and the DSM-IV Codes, and Code Range Descriptions of the various mental disorders with recognized structural brain damage. For Schizophrenic Disorders/Schizophrenia, Aetna’s List enumerates Code Nos. 295-295.4, 295.6, 295.90. (LTD 782.) The ICD-9 Code Range Descriptions provided by Aetna include the following Schizophrenic Disorders:

Simple type (295.0)

Disorganized type (295.1)

Catatonic type (295.2)

Paranoid type (295.3)

Schizophreniform disorder (295.4)

Residual schizophrenia (295.6)

Unspecified schizophrenia (295.9)

Id. The DSM-IV Code Range Descriptions provided by Aetna include the following under Schizophrenia:

Disorganized type (295.10)

Catatonic type (295.20)

Paranoid type (295.30)

Schizophreniform disorder (295.40)

Residual type (295.60)

Undifferentiated type (295.90)

Id. According to Aetna, Dr. Galonski’s primary disabling diagnosis is reported as 295.7 Schizoaffective Disorder, which does not appear on Aetna’s List. As such, Jeffrey Burdick, LCSW from Aetna’s Behavioral Health Unit (“BHU”), concluded on 6/11/12 that the 24-month mental nervous limit should be applied to Plaintiffs LTD claim. (LTD 186.)

Aetna’s claim file further indicates that the decision was made to reach out to Dr. Elena Mendelssen for confirmation that Plaintiffs diagnosis is not considered an exclusion under Aetna’s List. (LTD 197.) A note o'n 7/9/12 in Aetna’s claim filed indicates that Dr. Mendelssen “confirmed that the diagnosis does not appear on Aet-na’s Mental Nervous Limitations and Exclusions List[, and a]s such the 24 month mental nervous limit should be applied in this LTD claim.” (LTD 193.)

E. DISCUSSION

1. ERISA Standard of Review

ERISA “permits a person denied benefits under an employee benefit plan to challenge that denial in federal court.” Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). However, “ERISA does not specify the standard of review that a trial court should apply in an action for wrongful denial of benefits.” Post v. Hartford Ins. Co., 501 F.3d 154, 160 (3d Cir.2007). The Supreme Court has held that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). In this case, the parties agree that the Plan grants discretionary authority to Aetna to determine eligibility for benefits or to construe the terms of the Plan. As such, the arbitrary and capricious standard is applied to Aet-na’s decision to terminate Berkoben’s LTD benefits. Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 525-26 (3d Cir.2009).

Under the arbitrary and capricious standard of review, a court may overturn a decision of the plan administrator only if “it is without reason, unsupported by substantial evidence or erroneous as a matter of law.” Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir.2011). “A decision is supported by ‘substantial evidence if there is sufficient evidence for a reasonable person to agree with the decision.’ ” Courson v. Bert Bell NFL Player Retirement Plan, 214 F.3d 136, 142 (3d Cir.2000) (quoting Daniels v. Anchor Hocking Corp., 758 F.Supp. 326, 331 (W.D.Pa.1991)). Under this narrow standard, the reviewing court is not free to substitute its own judgment for that of the plan administrator. Vitale v. Latrobe Area Hosp., 420 F.3d 278, 286 (3d Cir. 2005) (citations omitted).

Where a structural or procedural conflict of interest is determined to exist, the “reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits ... and ... the significance of the factor will depend upon the circumstances of the particular case.” Glenn, 554 U.S. at 108, 128 S.Ct. 2343 (citing Firestone, 489 U.S. at 115, 109 S.Ct. 948). Interpreting the Supreme Court’s holding in Glenn, our court of appeals has determined that courts in this circuit should “continue to apply a, deferential abuse-of-discretion standard of review in cases where a conflict of interest is present.” Schwing, 562 F.3d at 525. In those situations, the court of appeals has instructed that courts “should apply a deferential abuse of discretion standard of review across the board and consider any conflict of interest as one of several factors in considering whether the administrator or the fiduciary abused its discretion.” Id. (citing Glenn, 554 U.S. at 115, 128 S.Ct. 2343; other citations omitted) (finding “sliding scale” approach no longer valid after Glenn). Moreover, the court of appeals determined that where an abundance of evidence exists to support the denial of the claim, “a structural conflict of interest or procedural irregularities would not serve to ‘tip [ ] the scales in favor of finding that the [administrator] abused its discretion.’ ” Miller, 632 F.3d at 846 (quoting Schwing, 562 F.3d at 526).

2. Structural and Procedural Conñicts of Interest

Where the entity making the determination as to whether an employee is eligible for benefits also pays the benefits out of its own pocket, “this dual role creates a conflict of interest!.]” Glenn, 554 U.S. at 108, 128 S.Ct. 2343. Such a conflict is considered a structural conflict of interest. Miller, 632 F.3d at 845 (“The structural inquiry focuses on the financial incentives created by the way the plan is organized[.]”) (quoting Post v. Hartford Ins. Co., 501 F.3d 154, 162 (3d Cir.2007)). The Supreme Court has recognized, however, that a structural conflict “should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits.” Glenn, 554 U.S. at 117, 128 S.Ct. 2343.

Procedural conflicts of interest derive from irregularities in the process employed in denying benefits, looking at how the administrator treated the particular claimant. Miller, 632 F.3d at 845 (citing Post, 501 F.3d at 165). This inquiry considers whether any alleged irregularities would give the court any reason to doubt the administrator’s fiduciary neutrality. Id. Procedural irregularities that can raise suspicion as to the administrator’s neutrality include, but are not limited to: “(1) a reversal of position without additional medical evidence; (2) self-serving selectivity in the use and interpretation of physi-dans’ reports; (3) disregarding staff recommendations that benefits be awarded; and (4) requesting a medical examination when all of the evidence indicates disability!.]” Post, 501 F.3d at 164-65 (internal citations omitted). Other examples of procedural bias include: (1) failing to follow a plan’s notification provisions regarding denial of benefits and conducting self-serving paper review of claimant’s medical file, Lemaire v. Hartford Life & Accident Ins. Co., 69 Fed.Appx. 88, 92-93 (3d Cir.2003); (2) self-serving selectivity in the administrator’s use of medical expert’s report, relying on favorable parts of report while discarding unfavorable parts without explanation, Pinto v. Reliance Std. Life Ins. Co., 214 F.3d 377 (3d Cir.2000); and (3) denying benefits based on inadequate medical information for the crucial time period and an unreasonably lax investigation into plaintiffs claim, Friess v. Reliance Std. Life Ins. Co., 122 F.Supp.2d 566, 574-75 (E.D.Pa.2000).

3. Plaintiffs Motion for Summary Judgment

Plaintiff moves for summary judgment in his favor arguing that Aetna abused its discretion in its determination to terminate his LTD benefits. In support, Berkoben submits that a structural conflict of interest exists here, as Aetna is the same entity which funds and administers the benefit plan, which must be weighed as a factor in determining whether Aetna abused its discretion. (PL’s Summ. J. Br. at 6, ECF No. 28.) Berkoben farther submits that multi-pie procedural irregularities occurred in Aetna’s claims handling which resulted in Aetna abusing its discretion in denying Plaintiffs ongoing claim for LTD benefits. Plaintiff has identified three examples of Aetna’s procedural irregularities: (1) Aet-na ignored Dr. Galonski’s Report and attached literature confirming that present medical nomenclature acknowledges schi-zoaffective disorder and bipolar disorder are biological diseases of the brain; (2) Aetna ignored its own peer review psychiatrist’s conclusion that Plaintiffs condition has a biological basis; and (3) Aetna ignored the terms of its own Policy. The Court will consider each of these purported conflicts of interest in turn.

a. Structural Conflict of Interest

Berkoben submits that a structural conflict of interest exists here, as Aetna is the same entity which funds and administers the benefit plan. In response, Aetna acknowledges that its dual-role as both claim reviewer and claim payer may give rise to a concern about conflict of interest, but maintains that it is still entitled to the deference normally afforded under the arbitrary and capricious standard, citing Miller, 632 F.3d at 845. Moreover, Aetna submits that Plaintiff bears the burden of demonstrating not only that a conflict exists, but that it had a significant impact on the decision, balancing all of the relevant factors going into that decision, citing for support, Eppley v. Provident Life & Acc. Ins. Co., 789 F.Supp.2d 546, 569 (E.D.Pa. 2011). According to Aetna, the administrative record does not support Plaintiffs suggestion that its decision was affected by a conflict of interest. Rather, Aetna submits that it has put into place procedural safeguards and quality control measures to advance its practice and intention to review claims fairly, without regard to the manner in which the plan is funded, and to pay claims consistently and in accordance with the applicable benefit provisions, so that those claims which are payable under the Plan are paid and those which are not payable are not paid. Aetna further maintains that it has made tremendous efforts to wall off claims personnel from those interested in firm finances. In support, Aetna offers the Affidavit of Phillip Syphers, who is the Claim Manager, Disability and Absence Management, for Aetna. See Aff. of Philip Syphers, attached to Defs Br. in Opp’n to Summ. J. (ECF No. 32-1).

The Court is satisfied that the structural conflict asserted here should have little if any impact on whether Aetna abused its discretion in terminating Plaintiffs LTD benefits. The Court has reviewed Mr. Sy-phers’ affidavit and finds that it supports Aetna’s position. Significantly, Plaintiff has not offered any argument or evidence to contradict Aetna’s response or Mr. Sy-phers’ affidavit.

b. Alleged Procedural Irregularities

The essence of Plaintiffs alleged procedural irregularities is that Aetna’s decision to terminate his benefits was ingrained with self-serving selectivity and review of the medical evidence. As to the first alleged procedural irregularity, Berkoben submits that Aetna singularly and wrongly focused on whether he suffered from a mental health disability without even considering if his illness was an exception to the 24-month mental/nervous limitation, which is clear from its termination letter dated July 10, 2012. Specifically, Berko-ben points to the following excerpt from Aetna’s termination letter: “The diagnosis of Schizoaffective Disorder is considered a mental health or psychiatric condition and therefore has 24 month max benefit duration. You will not be eligible for benefits beyond 8/28/2012.” (LTD 302.) As further evidence of Aetna’s improper focus in the 7/10/12 termination letter, Berkoben points to Aetna’s request that he provide documentation of “specific physical limitations related to [his] condition” and, using standard, boilerplate language, that he provide “diagnostic studies ... such as test results, X-rays, laboratory data, and clinical findings; ...” Id. Based on these excerpts, Berkoben maintains that in July 2012, Aetna did not understand the singular issue comprising his entitlement to ongoing benefits — that his schizoaffective disorder and bipolar disorder, although considered mental/nervous conditions, are biological diseases of the brain, and therefore, fall within the exception to the 24-month limitation.

With regard to his appeal, Berkoben submits that Dr. Galonski’s narrative report, in which she opines that “it is widely accepted within the medical community that schizophrenia and bipolar disorder, which are both present in Jason’s case, are biological diseases of the brain,” and the medical literature attached in support, should have been more than sufficient to convince Aetna that it impermis-sibly terminated his benefits after 24 months solely on its stated basis that the “diagnosis of Schizoaffective Disorder is considered a mental health or psychiatric condition and therefore has 24 month max benefit duration.” Nonetheless, Aet-na denied his appeal on the same basis, stating that the DSM “still classifies these conditions as mental nervous conditions,” again demonstrating that Aetna either did not understand or willfully chose to ignore the singular focus of his appeal — that his disability was an exception to the 24-month mental/nervous limitation.

The next procedural irregularity raised by Plaintiff is Aetna’s self-serving selectivity in the use and interpretation of the report prepared by its peer review psychiatrist, Dr. Stephen Gerson. Berkoben contends that Aetna’s complete misunderstanding of the singular issue in this case is illustrated both by what is contained in Dr. Gerson’s report and notably by what was omitted. Aetna posed two questions to Dr. Gerson:

1. Based on the provided documentation, and telephonic consultation, when applicable, provide a detailed description of the claimant’s functional impairments, if any, from 08/30/12 through 11/05/12.

2. In your opinion, is the disabling condition a medical condition or mental/nervous condition?

(LTD 307-310.) Berkoben submits that in light of Dr. Galonski’s narrative report and attached medical literature, Aetna should have posed a third question to Dr. Ger-son — in his opinion, does the claimant have a mental health or psychiatric condition characterized by demonstrable, structural brain damage? However, Aetna never asked Dr. Gerson this most probative question because, according to Berkoben, it is patently obvious that Aetna never fully grasped the singular issue on appeal. Berkoben points out that Dr. Gerson actually concurred with Dr. Galonski’s opinion, and if Aetna truly understood the issue on appeal, Dr. Gerson’s concurrence should have compelled it to reverse its decision and reinstate his LTD benefits. Instead, Aetna supported its denial of his appeal only by stating that the DSM “still classifies these conditions as mental nervous conditions.” (LTD 296.) Berkoben maintains that he has never disputed that he suffers from a mental health disability, only that his mental health disability is characterized by demonstrable, structural brain damage. Berkoben contends that Aetna has failed to substantively respond to or address this issue.

The last procedural irregularity asserted by Plaintiff is that Aetna ignored the terms of its own policy.

In opposition, Aetna submits that Plaintiffs assertions of procedural irregularities have no basis in fact. In support, Aetna argues that the administrative record shows that during its review of Plaintiffs claim for LTD benefits, all documents and information submitted by or on behalf of Plaintiff in support of his claim or otherwise obtained by Aetna were considered in reaching the claim decision. Aetna further contends that Dr. Galonski’s 9/5/12 report with attached medical literature was reviewed by two independent physicians, and that “Dr. Gerson’s independent psychiatric review directly comments on emerging clinical evidence that most mental health conditions may have a biological basis, but concludes that the condition continues to be considered a mental health condition.” Defs Br. in Opp’n to Summ. J. at 9-10 (EOF No. 32). Finally, Aetna submits that its final denial letter addresses the medical literature and Dr. Gerson’s opinion. The Court finds that Aetna’s argument is not convincing as it mischaracter-izes the evidence and the contents of its final denial letter.

The fact that Aetna considered all of the documents and information submitted by Plaintiff as well as the peer review reports misses the mark. The issue here is not whether Aetna failed to consider all of the evidence, but rather, whether Aetna’s decision to terminate Plaintiffs benefits is supported by substantial evidence.

The starting point for this Court’s deferential review is Aetna’s 7/10/12 termination letter and its 11/2/12 final denial letter. In the termination letter, Aetna informed Plaintiff that his diagnosis of schizoaffective disorder is considered a mental health or psychiatric condition and therefore, has a 24-month maximum benefit duration. In the final denial letter, Aetna stated that because Plaintiffs schi-zoaffective disorder and bipolar disorder are classified as mental/nervous conditions by the DSM, his disabling condition was subject to the 24-month limitation and therefore, he was not entitled to LTD benefits after 8/28/12. Although Aetna mentions that it requested independent peer reviews by physicians specializing in physical medicine and psychiatry, it does not inform Plaintiff of the results of these reviews; the final denial letter makes no mention of the medical literature or Dr. Gerson’s opinion. Aetna then states:

In your appeal request letter ... you provide your opinion that Mr. Berko-ben’s LTD benefits should not be subject to the 24 month maximum benefits because his disabling' condition [is] biological and not mental nervous condition. We agree that there is emerging clinical evidence that the conditions of schizophrenia and bipolar illness have a biological basis. However, the [DSM] still clássifies these conditions as mental nervous conditions.

Final Denial Ltr. at 2 (LTD 296). Aetna’s conclusion is troubling in two respects. First, Aetna misstates Plaintiffs counsel’s position in his appeal request letter, and second, Aetna knows that many mental disorders, which are classified as mental nervous conditions including schizophrenia, have recognized structural brain damage, and Aetna has excluded them from its 24-month limitation, as documented by its List.

Aetna incorrectly perceived Plaintiffs counsel’s argument in his appeal request letter to be that Plaintiffs schizoaffective disorder was not subject to the mental health 24-month limitation because his disabling condition was a biological condition not a mental/nervous condition. Counsel’s appeal request letter clearly indicates that Plaintiff was not maintaining that his disabling condition was not a mental health condition, but rather, that he was maintaining that his schizoaffective disorder was a mental health illness with an organic basis. Plaintiffs counsel specifically notes that the question of whether schizoaffec-tive disorder is associated with neurochemical and structural brain deficits was posed to Dr. Galonski, and notes her response, which cites to numerous studies and the DSM-IV-TR, which show structural/neu-robiological changes to the brain in individuals with schizophrenia and bipolar disorder. Appeal Request Ltr. 9/10/12 at 2-3 (LTD 298-299). Thus, counsel’s appeal letter clearly puts Aetna on notice that Plaintiff is pursuing the exclusion to the limitation&emdash;where the mental condition is characterized by structural brain damage. Yet Aetna states that it is upholding its decision to terminate Plaintiffs benefits based on its conclusion that schizophrenia and bipolar disorder are still classified as mental/nervous conditions. This conclusion is unreasonable because it ignores Plaintiffs clearly stated position&emdash;that his disabling condition is characterized by structural brain damage and thus is excluded from the 24-month limitation period.

As to the second infirmity, Aetna’s conclusion in its termination letter and final denial letter is contrary to its own internal List, which acknowledges that many mental/nervous conditions, including schizophrenia, have recognized structural brain damage, and excludes those conditions from the 24-month mental health limitation. (LTD 781-000784.) Most importantly, Aetna’s conclusion states that Plaintiffs disabling condition is still classified as a mental nervous condition and therefore is subject to the 24-month limitation. Although it appears from a review of the claim file that Aetna did ask Jeffrey Burdick, a LCSW in its BHU, and Dr. Mendelssen to confirm whether Plaintiffs diagnosis of schizoaffective disorder, ICD Code No. 295.7, fell within its internal List, no mention of these referrals or its internal List was made in either Aetna’s termination letter or its final denial letter. This is critical as Aetna relied on both the referrals and its internal List to terminate Plaintiffs benefits. As such, Plaintiff contends that Aetna did not provide him with the specific reasons for its decision to terminate his benefits as required by Section 503 of ERISA, 29 U.S.C. § 1133(1), which further demonstrates that Aetna abused its discretion.

Section 503 provides in relevant part that:

[E]very employee benefit plan shall&emdash;

(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and

(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

29 U.S.C. § 1133(1) & (2). Also, as Plaintiff points out, the Secretary of Labor has promulgated regulations estab