Mason v. Federal Express Corporation et al

Filing 74

ORDER AND OPINION granting in part and denying in part 55 Motion for Judgment as a Matter of Law; denying 57 Motion for Summary Judgment; defs ordered to grant plf's clm for short-term disability benefits. Signed by Judge John W. Sedwick on 2/22/16. (PRR, COURT STAFF)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF ALASKA

10
11
12

Maurice K. Mason,

13
14
15

Plaintiff,
vs.
Federal Express Corporation, et al.,

16
Defendants.
17

)
)
)
)
)
)
)
)
)
)
)

3:14-cv-0107 JWS
ORDER AND OPINION
[Re: Motions at dockets 55 and 57]

18
I. MOTIONS PRESENTED
19
At docket 55 plaintiff Maurice K. Mason (“Mason”) moves for judgment after a
20
trial on the record pursuant to Federal Rule of Civil Procedure (“Rule”) 52 or,
21
alternatively, summary judgment pursuant to Rule 56. Defendants Federal Express
22
Corporation, FedEx Trade Networks Transport & Brokerage, Inc., Aetna Life Insurance
23
Company, Federal Express Corporation Short Term Disability Plan, and Federal
24
Express Corporation Long Term Disability Plan (collectively, “Defendants”) oppose
25
Mason’s motion at docket 58 and cross-move for summary judgment at docket 57.
26
These two filings are supported by a memorandum at docket 59. Mason replies in
27
support of his motion at docket 66 and opposes Defendants’ cross-motion at docket 67.
28
Mason’s memorandum in support of these two filings is at docket 64, and his

1

declaration is at docket 65. At docket 73 Def endants reply in support of their cross-

2

motion.

3

Oral argument was not requested and would not assist the court.

4

II. BACKGROUND

5

While he was employed by defendant FedEx Trade Networks Transport &

6

Brokerage, Inc. (“FedEx Trade”) Mason was diagnosed with a rare autoimmune disease

7

known as Stiff Person Syndrome (“SPS”). SPS is “manifested clinically by the

8

continuous isometric contraction of many of the somatic muscles; contractions are

9

usually forceful and painful and most frequently involve the trunk musculature, although

10

limb muscles may be involved.”1 After defendant Aetna Life Insurance Company

11

(“Aetna”) denied his claim for short-term disability benefits, he filed suit under the

12

Employee Retirement Income Security Act of 1974, as amended (“ERISA”).2 His

13

complaint alleges: (1) wrongful denial of his claim for short-term disability benefits;

14

(2) wrongful refusal to consider his claim for long-term disability benefits; (3) breach of

15

fiduciary duty; and (4) failure to provide requested plan documents. Although the

16

parties style their cross-motions as summary judgment motions, they would be more

17

accurately described as partial summary judgment motions because they only address

18

the merits of the first of Mason’s four causes of action: whether Aetna abused its

19

discretion in denying Mason’s short-term disability claim.

20

Mason argues that Aetna abused its discretion by ignoring objective medical

21

evidence in the record that shows that his SPS and the side effects of his medications

22

prevent him from performing the duties of his former job. The following is a summary of

23

the evidence in the record.

24
25
26
27

1

28

2

STEDMAN’S MEDICAL DICTIONARY (2014). See also doc. 32-2 at 9.
29 U.S.C. §§ 1001-1461.

-2-

1

A.

2

Initial Treatment from Medical Park Family Care
Beginning in early 2008 Mason repeatedly complained about muscle spasms to

3

his primary care physicians at Medical Park Family Care,3 but the physicians were

4

unable to determine their cause.4 For example, Mason saw Dr. James R. Lord on

5

May 8, 2009, complaining of “continuing very unusual symptoms,” including “various

6

types of body spasms in the hands, legs, feet”; “some cramping”; swollen joints; and

7

blurred vision.5 Dr. Lord stated that Mason’s symptoms were “very difficult to explain.”6

8

B.

9

SPS Diagnosis from the VA
In February 2010 Mason saw neurologist Gregg Meekins, M.D. with the VA

10

Medical Center. Dr. Meekins noted Mason’s lengthy history “of severe spasms

11

affecting hands, feet, torso, etc.,” and the multiple medications that Mason was taking

12

“without benefit or intolerable side effects of excessive sedation.”7 Dr. Meekins ordered

13

laboratory testing, which “came back positive for very high anti-glutamic acid

14
3

15
16
17
18
19
20
21
22
23

Doc. 32-2 at 122. See also Mason’s November 26, 2008 chart note, id. at 126 (“This
44-year-old male is having unusual symptoms that continue, which include this type of cramping
sensation of his extremities associated with some tremors. . . . . He is noting increased
intensity and frequency recently.”); his April 21, 2009 chart note, id. at 127 (“[H]as had an
increase in his muscle spasm. . . . . Primarily they are in the hands, forearms, lower legs and
feet.”); his October 15, 2009 notes, id. at 130 (“This 45-year-old male presents with a long
history of cramping in the extremities and neck as well. It has been going on for greater than a
year.”); his November 11, 2009 notes, id. at 132 (“45-year-old male presents for a constant
cramping pain in his neck for the past 3-4 days. . . . . Pain intermittently down both arms,
tingling or burning and somewhat painful, associated w/ hand and finger spasms or locking
up.”); his February 4, 2010 notes, id. at 136 (“Chief Complaint: Cramping in stomach, arms, and
legs that will not stop, and along with headaches (since Monday).”); his February 12, 2010
notes, id. at 138; and his February 15, 2010 notes, id. at 140 (“This patient returns with
continued spasms of the extremities and cramping with headaches of concern it may have been
related to anxiety a full work up has been done with no etiology determined at this time.”).
4

24
25

See, e.g., Masons’s November 26, 2008 chart note, id. at 126 (“Extremity cramping.
tremors, and weakness. The etiology Is not clear.”); and his February 4, 2010 note, id. at 137
(“Unclear etiology of patent’s symptoms . . . .”).

26

5

27

6

28

7

Id. at 129.
Id.
Id. at 57.

-3-

1

decarboxylase [“GAD”] 65 antibody level consistent with the diagnosis of stiff-person’s

2

syndrome.”8 After diagnosing Mason with SPS, he prescribed baclofen to treat Mason’s

3

condition.9 Although a subsequent laboratory test in July 2010 came back normal,10

4

Mason’s blood was retested in December 2010 and the results were positive for SPS

5

(“although not as high a level” as the February result).11 Defendants do not contest the

6

validity of Mason’s SPS diagnosis.

7

C.

8

Consult with Neurologist Wayne Downs, M.D.
Mason met with neurologist Wayne Downs, M.D. in April 2010. Mason described

9

his history of cramping, which he said had gotten gradually worse.12 He also explained

10

that he was being treated with several “potentially sedating drugs” which caused a “lack

11

of focus and short-term memory loss.”13 Mason told Dr. Downs that he was not able to

12

perform his job and in “the last few days he [had] been found asleep at his desk on two

13

occasions.”14

14

Dr. Downs assessed Mason as having “anti-GAD65 stiff person syndrome.” As

15

to Mason’s lack of focus and memory loss, Dr. Downs stated that Mason’s

16

encephalopathy15 was “worse on his current medications” and suspected that this was

17

because of the baclofen he was taking. At the time Mason was taking 60 mg of

18
19
20
21
22

8

Id.

9

Id.

10

23

Id. at 101.

11

24
25

Id. at 108.

12

Id. at 146.

26

13

27

14

28

15

Id.
Id.
Encephalopathy is a disorder of the brain. STEDMAN’S MEDICAL DICTIONARY (2014).

-4-

1

baclofen daily.16 Dr. Downs wrote that “[w]ere l treating him I would taper the baclofen

2

off relatively rapidly and then start pushing the Valium.”17 “If we can get him off his

3

sedating medications and he is still having an encephalopathic problem,” Dr. Downs

4

wrote, “then I think a neuropsych[ological] test would be indicated to quantitate [sic] this

5

as this may be a source of employment difficulties.”18

6

D.

7

Follow-Up Treatment
Following his consult with Dr. Downs, Mason returned to Medical Park Family

8

Care complaining about the side effects of his medications. On May 7, 2010 Dr. Lord

9

ordered Mason to taper off baclofen but stated that he would still “likely need high

10
11

doses of muscle relaxants for the muscle cramps and stiffness.”19
On July 8, 2010 Mason saw Dr. Lord again, complaining that his SPS was

12

worsening and that the tapering of the dosage of his muscle relaxants was not

13

helping.20 The notes from Dr. Lord’s physical examination state that Mason was in

14

“moderate pain/distress” and “[v]isibly uncomfortable, some palpable spasms on chest

15

wall, discomfort with walking and changing positions.”21

16

On July 15, 2010, Mason was admitted to the emergency department of

17

Providence Alaska Medical Center, complaining of cramps and muscle spasms with

18

pain that he described as a 10 on a scale of 0 to 10.22 The emergency department

19

physician noted that Mason did not appear to be in distress or discom fort despite his

20
21
22

16

Doc. 32-2 at 146.

17

23

Id. at 148.

18

24
25

Id. at 149.

19

Id. at 153.

26

20

27

21

28

22

Id. at 163.
Id.
Id. at 52.

-5-

1

stated pain level, and that he was alert and oriented. Mason was given morphine and

2

Ativan for his pain and instructed to follow up with his primary care physician.23

3

The next morning Mason met with Dr. Lord, who noted in his physical exam that

4

Mason was suffering from “moderate pain/distress.” 24 Later that day Mason was again

5

admitted to the emergency room complaining of pain.25 The emergency department

6

physician noted that Mason’s inability to control his SPS-related pain was “unfortunately

7

par for this unfortunate malady,” which he described as “ultimately . . . very difficult to

8

treat.”26

9
10
11

In the following months Mason sought medical treatment repeatedly for his SPS,
including the following visits:
∙

Dr. Lord’s July 27, 2010 physical exam notes state that Mason was

12

suffering from “mild pain/distress” and had a “depressed affect.”27

13

Dr. Lord concluded that Mason’s SPS had deteriorated. 28

14

∙

The next day Mason met with Dr. Meekins, complaining of painful spasms

15

and stiffness in his trunk and extremities. Dr. Meekins described Mason’s

16

SPS as “progressive.”29

17
18
19
20
21
22

23

Id. at 53.

24

23

Id. at 164.

25

24
25

Id. at 55.

26

Id.

26

27

27

28

28

29

Id. at 168.
Id.
Id. at 61.

-6-

1

∙

On August 16, 2010, Dr. Lord again examined Mason, assessed Mason’s

2

SPS had deteriorated, and noted that he was suffering from “mild

3

pain/distress” and “[c]ontinued diffuse muscle spasms.”30

4

∙

Dr. Lord examined Mason again on August 25, 2010, and again noted that

5

Mason was suffering from “mild pain/distress” and had a “depressed

6

affect.”31

7

∙

On September 22, 2010, Mason was referred to VA internist Madeleine M.

8

Grant, M.D., who addressed Mason’s reports that his medicine was

9

causing him to be too sedated to drive or work.32 Dr. Grant listed Mason’s

10

treatment goal as “find[ing] medication that worked and did not affect him

11

cognitively.”33 She recommended tapering Mason’s baclofen usage and

12

gradually increasing diazepam.

13

∙

In Dr. Lord’s notes to Mason’s September 29, 2010 visit, Dr. Lord states

14

that he discussed Mason’s SPS with the VA and they agreed to “maximize

15

the dosing of Valium to try and treat his spasms” and “[s]lowly titrate down

16

the baclofen.”34

17

∙

On October 6, 2010, Mason complained to Dr. Lord that his body cramps

18

had “worsened especially the feet and arms since tapering off of the

19

baclofen” but he noticed less sedation. 35

20
21
22
30

23

Id. at 173.

31

24
25

Id. at 175.

32

Id. at 68.

26

33

27

34

28

35

Id. at 69.
Id. at 181.
Id. at 183.

-7-

∙

1

On October 28, 2010, Dr. Lord again noted that Mason’s SPS had

2

deteriorated, he was suffering “moderate pain/distress,” and had a

3

“depressed affect.”36
∙

4

On November 15, 2010, Mason complained to Dr. Lord about “pain and

5

discomfort and depression” from SPS. Dr. Lord’s physical exam noted

6

that Mason was suffering from “moderate pain/distress” and had a

7

“depressed affect.”37
∙

8

On December 23, 2010, Mason told another Family Park Medical Care

9

physician, Jeffrey Kim, M.D., that he was doing “okay” on Valium but it
made him “very sleepy and very poor functioning.”38

10
∙

11

On January 9, 2011, Mason was admitted to the emergency department

12

at the hospital complaining of severe abdominal pain, which he graded as

13

a 9 on a scale of 0 to 10.39 The emergency department physician noted

14

that Mason alleviated his pain by taking his medication at home, but within

15

about 20 minutes of presenting himself at the hospital Mason had already

16

fallen asleep.40

17
18

E.

Neuropsychological Exam
Because Mason was complaining of memory decline, Dr. Meekins referred

19

Mason to neuropsychologist Paul D. Dukarm, Ph.D. for testing in September 2010. In

20

his summary of his findings Dr. Dukarm states that Mason was “exhibiting variable

21

neurocognitive performance deficits in the areas of executive functioning. Specifically,

22

he [was] demonstrating impaired performance in the area of visuospatial organization

23
36

24
25

Id. at 188.

37

Id. at 190.

26

38

27

39

28

40

Id. at 192.
Id. at 48.
Id. at 49.

-8-

1

and planning during problem solving and impaired response flexibility under changing

2

conditions.”41 In addition, Dr. Dukarm found that Mason was “borderline deficient” with

3

regard to “[d]eductive logic as it relates to attribute identification and concept formation,”

4

and he showed “deficiencies for learning and retaining uncontexualized verbal

5

information, such as a word list.”42 Dr. Dukarm noted, however, that Mason’s

6

“recognition [was] intact as well as his learning efficiency and retention of other forms of

7

verbal information (prose) and non-verbal information.”43 And although Mason’s “[b]asic

8

auditory attention and working memory” were “low average,” he was in the average

9

range with regard to “visual working memory,” “verbal fluency under time pressure,

10

sequencing and alternating attention under time pressure, and inhibiting automatic

11

responses under time pressure.”44

12

Dr. Dukarm concluded that the findings of his exam were “compatible with a

13

diagnosis of Cognitive Disorder, NOS.”45 “Etiology of neurocognitive deficits is unclear

14

and likely multifactorial. . . . . The most likely contributing factors to this patient’s

15

performance deficits include medication effects, pain, and sleep disturbance. Other

16

contributing factors include the autoimmune disease of which he is diagnosed, but the

17

cognitive effects are unclear as to the nature and source of the impact from this

18

condition.”46

19
20
21
22
41

23

Id. at 77.

42

24
25

Id.

43

Id.

26

44

27

45

28

46

Id.
Id.
Id. at 77-78.

-9-

1
2

F.

3

Psychotherapy
On September 1, 2010, Mason was seen by Camilla A. Madden, Ph.D., a

4

psychologist at the VA, who diagnosed Mason with severe depression related to his

5

struggles at work and with his family because of the side effects of his medications and

6

the limitations of his disorder.47 Mason continued to see Dr. Madden regularly for

7

treatment of his depression.48

8

G.

9

Mason Applies For Short-Term Disability Benefits
Mason applied for short-term disability benefits in December 2010, stating that

10

he was no longer able to work due to his SPS and described his symptoms as follows:

11

“Muscle spasms all over, cramps all over, dystonia49 in the hands and feet, chronic

12

fatigue, unable to concentrate and chronic headache.” 50 In order for employees to

13

qualify for short-term disability benefits under the Short Term Disability Plan (“the Plan”)

14

administered by defendant Federal Express Corporation (“FedEx”), they must show that

15

they suffer from an “occupational disability,” which the Plan defines as “the inability of a

16

Covered Employee, because of a medically-determinable physical impairment or

17

Mental Impairment, to perform the duties of his regular occupation.”51

18
19
20
21
22
47

23

Id. at 64-65.

48

24
25
26

See, e.g., id. at 66-67; 71-72; 79-82; 83-84; 88-89, 90-91; 94-85; 97-98.

49

Dystonia is defined as “[a] syndrome of abnormal muscle contraction that produces
repetitive involuntary twisting movements and abnormal posturing of the neck, trunk, face, and
extremities.” STEDMAN’S MEDICAL DICTIONARY (2014).

27

50

28

51

Doc. 32-3 at 32-33.
See the Plan § 1.1(s), doc. 32-6 at 50. See also Doc. 59 at 4.

-10-

1
2

H.

Mason’s Supervisor States that Mason is Unable to Work
Mason worked as a manger for FedEx Trade who oversaw a group of 26

3

employees.52 His former supervisor, Linda Combs (“Combs”), wrote an email stating

4

that Mason “would suffer from severe muscle cramping” at work “and his limbs would

5

‘lock up.’”53 For example, Combs reported that she had observed Mason not being able

6

to get up from a meeting table “because his legs locked up” and “his hands cramp up

7

and lock where he could not open his hand.” 54 Combs also stated that she saw Mason

8

“fall to the ground with leg spasms at an employee picnic.”55

9

Combs stated that Mason started “really declining in the fall of 2009,” when he

10

had “spasms much more frequently and more severely.”56 Mason started taking

11

medication but it was “very sedating,” causing him to take most of March and some of

12

April 2010 off from work so that he could “try[] to cope on these medications.”57 When

13

he returned to work, he “struggled with staying awake and alert through an 8 hour work

14

day,” had a bad limp, and experienced difficulty walking around the two-floor office.58

15

Combs reported that Mason had “trouble focusing and remembering things,” and “many

16

times” on the job “was falling asleep, slurring his words and making very little sense.”59

17

Combs stated that she “would send him things that he didn’t ever remember seeing”

18
19
20
21
22

52

Doc. 32-2 at 235.

53

Id. at 236.

54

23

Id.

55

24
25

Id.

56

Id.

26

57

27

58

28

59

Id. at 237.
Id.
Id.

-11-

1

and that he “could not keep up with his deadlines.”60 “I finally told him that this was

2

getting way out of control,” Combs wrote. “We wouldn’t allow any other employee to

3

come in and pass out at their desk. I felt like I was dealing with a situation that

4

presented the company with a grave liability.”61

5

Combs’ report is consistent with a December 13, 2010 entry in Aetna’s claim

6

records which states that Mason’s “HR Advisor” called Aetna because she wanted to

7

help Mason with his claim. The advisor stated that she would “make [Mason]

8

understand” what Aetna needed and would “ask [Mason’s] girlfriend to help him,

9

because he is in a lot of pain and many times he is [on] pain medicine and cannot

10

understand what he is being asked.”62

11

I.

Mason’s Treating Physicians Opine That He Is Unable to Work

12

In June 2010 Dr. Lord filled out a FedEx form indicating that Mason was unable

13

to perform any of his job functions due to his SPS, and his condition was permanent.63

14

Dr. Lord elaborated on his opinion in a July 29, 2010 letter, in which he stated that

15

Mason’s medical concerns—including “uncontrollable muscle spasms throughout the

16

body, irritable bowel-like symptoms, generalized anxiety and depression, restless legs,

17

circulatory conditions, hypertension, spontaneous tendon ruptures and sleep

18

disorder”—can be attributed to his “definitive diagnosis” of SPS.64 Dr. Lord wrote that

19

Mason’s “symptoms have progressively worsened and his symptoms are currently

20
21
22
23
60

24
25

Id.

61

Id.

26

62

27

63

28

64

Doc. 32-3 at 45.
Doc. 32-2 at 159-62.
Id. at 172.

-12-

1

poorly controlled. He is medically disabled at this time and would benefit from

2

evaluation by a leading expert on stiff person syndrome.”65

3

The physician responsible for Mason’s primary care shifted from Dr. Lord to

4

Dr. Kim.66 Dr. Kim wrote a letter on December 23, 2010, stating that Mason’s SPS

5

diagnosis had been confirmed by two separate neurologists and rendered him

6

permanently disabled.67 Dr. Kim also completed an “Attending Physician Statement” on

7

January 21, 2011, that states Mason is unable to work in any capacity due to his

8

disease and the effects of his medications and lists the objective data upon which this

9

opinion relies, including physical exams that reveal spasms in Mason’s chest and

10

abdomen and cramps in his extremities, and various diagnostic tests that were

11

performed on Mason that confirm his SPS diagnosis.68 Dr. Kim expanded on this

12

opinion in the following two notes in Mason’s file: (1) on January 21, 2011, Dr. Kim

13

wrote that “[f]or reasons related to medication side effects as well as symptoms

14

associated with his condition, [Mason] is unable to function adequately at work and

15

should certainly be considered disabled;” 69 and (2) on January 26, 2011, Dr. Kim wrote

16

that Mason was “currently, and for the foreseeable future, significantly disabled and

17

unable to function at any effective level in a work capacity.”70

18

J.

19
20

Aetna Denies Mason’s Claim
Aetna denied Mason’s claim on March 28, 2011. In the denial notice Aetna

Nurse Consultant Patricia Karns (“Karns”) writes that she reviewed Mason’s file and

21
22
65

23

Id.

66

24
25

Doc. 55 at 11.

67

Doc. 32-2 at 194.

26

68

27

69

28

70

Id. at 198.
Id. at 196.
Id. at 199.

-13-

1

presented his claim to “an independent peer physicians [sic] specializing in internal

2

medicine, neurology, and neuropsychology.” She informs Mason that Aetna

3

determined that “the clinical data received and reviewed fails to support a functional

4

impairment from [Mason’s] sedentary occupation.”71

5

Aetna did find that some unspecified “data indicates that [Mason was] unable to

6

work related to side effects of [his] medications.”72 “However,” Aetna continued, “the

7

office visit notes from Dr. Kim and Dr. Grant do not document any objective findings to

8

indicate a functional impairment such as significant sleepiness or disorientation during

9

office visits. The documentation also noted that you are alert and oriented.” 73 Aetna

10

also concluded that there was “no documentation of any cognitive impairment”74 despite

11

the apparent contrary conclusion of Dr. Dukarm, because Dr. Dukarm “did not record

12

any significant sedation during the interview or testing.”75 Aetna also discounted the

13

results of Dr. Dukarm’s test that supported a disability finding, stating that “there was no

14

consistency or validity testing results.”76

15

Aetna’s notice states that Mason needed to subm it, among other things,

16

“medical documentation that clearly states the significant objective findings that

17

substantiate a disability.”77 Aetna defined “significant objective findings” as “signs,

18

which are noted on a test or medical exam and are considered significant anatomical,

19

physiological, or psychological abnormalities that can be observed by a practitioner

20
21
22

71

Id. at 4.

72

23

Id.

73

24
25

Id. (emphasis added).

74

Id.

26

75

27

76

28

77

Id. (emphasis added).
Id.
Id. at 5.

-14-

1

apart from your description of your symptoms.” Aetna provided examples of such data:

2

(1) “[p]hysician exam reports, office notices, progress notes;” (2) “[o]ther Healthcare

3

provider reports;” and (3) “[d]iagnositic test results, i.e. lab tests, radiographic tests.”78

4

Aetna informed Mason in bold print that “[p]ain, without significant objective findings, is

5

not proof of disability.”79
Mason appealed on June 24, 2011. 80

6
7
8
9

K.

Mason Submitted Additional Information
Between the date of Aetna’s denial and the date Mason filed his appeal, Mason

was admitted to the emergency department three times related to SPS spasms: on

10

April 27,81 May 11,82 and May 28, 2011. 83 Mason submitted to Aetna the medical

11

records related to these admissions.84

12

On May 23, 2011, the Social Security Administration determined that Mason was

13

disabled under the rules of its disability insurance program (“SSDI”).85 The SSDI

14

program “provides benefits to a person with a disability so severe that she is ‘unable to

15

do [her] previous work’ and ‘cannot . . . engage in any other kind of substantial gainful

16
17
18
78

19
20

Id.

79

Id. at 4.

21

80

22

81

23

Doc. 32-3 at 19.

Doc. 32-2 at 32-39 (Mason was suffering from “still present,” severe, “whole body
spasms” and listed his pain level at 10 on a scale of 0 to 10).
82

24
25
26

Id. at 22-31 (Mason was taken to the emergency room in an ambulance complaining of
whole body muscle spasms and listed his pain level at 10).
83

Id. at 15-21 (Mason had fallen after suffering a spasm in his right leg, and was
diagnosed with a left ankle sprain and right quadriceps strain).

27

84

28

85

Id. at 11.
Id. at 12.

-15-

1

work which exists in the national economy.”86 Mason submitted to Aetna his Notice of

2

Award of SSDI benefits.87

3

Mason also submitted to Aetna letters from three of his treating doctors:

4

Dr. Grant, Dr. Downs, and Dr. Madden. Dr. Grant wrote a letter dated March 3, 2011,

5

stating that it was her opinion that Mason was unable to work on account of his

6

disability “both due to severe discomfort from his stiff man syndrome, and also from

7

side effects of the medication, which affects him cognitively.”88

8
9

Dr. Downs wrote a letter dated June 10, 2011, stating that Mason’s “symptoms
are consistent with [SPS] and blood work has been positive for the relevant antibodies.

10

The diagnosis is not in question.”89 Dr. Downs provided Aetna with the following

11

information about SPS:

12

16

The disease is extremely rare and poorly understood. There seem to be
several etiologies, but the final result is significant loss of inhibition of
spinal motor neurons which results in extreme excessive firing of these
motor neurons and contraction of the innervated muscles. This is similar
to but very much more severe than what is seen in spasticity after a
stroke, and the spasms can in fact be severe enough to break bones.
Symptoms can sometimes be controlled by medications, but the
medications are extremely sedating, and we have as of yet been unable
to give [Mason] any significant relief.90

17

In addition, Dr. Downs provided Aetna with a copy of the section from Goetz Textbook

18

of Clinical Neurolgy that discusses SPS and directed its attention to the f inal section,

19

“Prognosis and Future Perspectives.” That section reads as follows: “Without

20

treatment, SPS progresses to total disability related to generalized rigidity and

13
14
15

21
22
23
24
25

86

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797 (1999) (citing § 223(a) of the
Social Security Act, as set forth in 42 U.S.C. § 423(d)(2)(A)).
87

Doc. 32-2 at 11.

26

88

27

89

28

90

Id. at 121.
Id. at 8.
Id.

-16-

1

secondary musculoskeletal deformities. The pathogenetic autoimmune mechanisms

2

remain to be elucidated.” 91

3

Finally, Dr. Madden wrote a letter dated July 13, 2011, in which she describes

4

how the side effects of Mason’s medications impair his ability to function. She notes

5

that Mason’s medications make him “very tired to the point of not being able to stay

6

awake while engaged in an appointment. There have been therapy sessions with me

7

when Mr. Mason has fallen asleep despite a valiant effort to stay awake and to benefit

8

from the therapeutic encounter.” 92 Dr. Madden states that she “repeatedly noted that

9

[Mason’s] insight and judgment is good when not impaired due to the effects of

10

medication which alters his cognitive faculties,” but “neuropsychological testing has

11

indicated that he has a severe degree of intellectual loss from one and a half years ago

12

when he was still able to function as a manger at Federal Express.”93 Further, Dr.

13

Madden states that the side effects of Mason’s medications “are so serious that Mr.

14

Mason and his wife have frequently told me that he does not take his medication so that

15

he will be able to stay awake and alert enough so that he can communicate,

16

understand and remember what has taken place in a health care appointm ent or in

17

appointments with other agencies and physicians.”94

18

L.

19

Aetna’s Appeals Committee Upholds the Denial of Mason’s Claim
The Plan provides that if an “adverse benefit determination is appealed on the

20

basis of medical judgment, the appeal committee shall consult with an independent

21

health care professional who is qualified in the areas of dispute who shall not have

22
23
24
25

91

Id. at 9.

26

92

27

93

28

94

Id. at 13.
Id.
Id.

-17-

1

been involved in the initial claim denial.”95 In October 2011 Aetna’s Appeals Committee

2

upheld the denial of Mason’s claim. The denial letter states that the Committee

3

reviewed “all appeal information submitted, all medical documentation and the Peer

4

Physician Reviews dated 02/10/11, 02/24/11, 03/07/11, 03/08/11, 03/24/11, 08/06/11,

5

08/09/11, and 09/14/11.” 96 These Peer Physician Reviews included reviews from the

6

original three specialists in internal medicine, neurology, and neuropsychology, as well

7

as second opinions from three different physicians in those fields. Based on their

8

review, the Committee concluded that there were “no significant objective findings to

9

substantiate that a functional impairment exists that would render [Mason] unable to

10

perform [his] sedentary job duties as a Tax Analyst from 12/01/10 through current.”97

11

1.

12

Aetna’s Internal Medicine Peer Reviews
a.)

Wendy Weinstein, M.D.

13

Dr. Weinstein, who is board-certified in internal medicine, submitted a

14

February 11, 2011 Peer Physician Review that states she reviewed various medical

15

reports and concludes that “none of the examination findings by multiple providers have

16

documented abnormalities that would preclude the claimant from performing a

17

sedentary occupation.”98 Dr. Weinstein submitted a second Peer Physician Review on

18

March 9, 2011, after receiving additional medical reports to review. In neither of these

19

reviews did Dr. Weinstein engage in a “peer-to-peer consultation” with any of Mason’s

20

treating physicians.99

21
22

With regard to the effects of Mason’s SPS, Dr. Weinstein’s February 11 report
states that Mason was noted to “walk stiffly” at “one point,” “but there has been no

23
95

24
25

Doc. 32-6 at 72.

96

Doc. 32-1 at 1.

26

97

27

98

28

99

Id. at 2.
Doc. 32-2 at 260.
Id. at 255, 260.

-18-

1

documentation of abnormal muscle tone on specific muscle testing or other

2

musculoskeletal or neurologic examination abnormalities.” She acknowledges that

3

Dr. Meekins diagnosed Mason with SPS in February 2010, but adds that “there was no

4

documentation of any change in the claimant’s physical examination and no

5

documentation of specific functional impairments that would preclude the claimant from

6

performing his sedentary occupation as of 12/1/10.”100 Dr. Weinstein’s March 9 report

7

reaches the same conclusion, but adds the fact that on November 15, 2010, Dr. Lord

8

observed Mason in “moderate pain and distress.” Dr. Weinstein discounted this

9

observation, however, because “no details of specific observations were presented.”101

10

With regard to the side effects of Mason’s medications, Dr. Weinstein discounts

11

Dr. Dukarm’s neuropsychological test’s conclusion that Mason was likely suffering from

12

a cognitive defect caused in part by the effects of his medications. Dr. Weinstein writes

13

that the test’s “findings were non-specific and it was noted they could be attributed to

14

medication affects, pain, and sleep disturbance as well as depression.”102 Although

15

Mason “complained of somnolence from his medications,” Dr. Weinstein writes, “there

16

has been no documentation of pathologic hypersomnolence, difficulty with

17

communication in the office visits, or significant cognitive impairments. Progress notes

18

have described that claimant as alert and intelligent.”103 Dr. Weinstein was not provided

19

with any of Dr. Madden’s records.

20

Dr. Weinstein’s second review indicates that she was provided with a copy of

21

Dr. Dukram’s neuropsychological test and Combs’ email.104 Despite Dr. Dukram’s

22

finding that Mason had a cognitive impairment on September 27, 2010, Dr. Weinstein

23
100

24
25

Id. at 255.

101

Id. at 260.

26

102

27

103

28

104

Id. at 256.
Id.
Id. at 258.

-19-

1

writes that “it appears the claimant was still able to perform his own occupation with the

2

first date of absence being listed as 11/10/10.” 105 (Dr. Weinstein claims that she

3

reviewed all of Mason’s records, including Combs’ email, before reaching this

4

conclusion).106

5
6

b.)

Second Opinion From Dennis Mazal, M.D.

Dr. Mazal, who is board certified in pulmonology and internal medicine,

7

submitted an August 8, 2011 Peer Physician Review that states that he cannot “discuss

8

functionality” based on Mason’s SPS diagnosis because neurological diagnoses are

9

“not within the scope of [his] specialty.”107

10

With regard to the side effects of Mason’s medications, Dr. Mazal wrote without

11

further explanation that “[t]here is no documentation that any of those medications

12

caused any clinically significant side effects or adverse reactions that impact the

13

claimant’s ability to perform the duties of a sedentary demand occupation during the

14

time period under consideration.” 108 Dr. Mazal did not engage in a peer-to-peer

15

consultation with any of Mason’s treating physicians.

16

2.

Aetna’s Neuropsychology Peer Reviews

17
18

a.)

Elana Mendelssohn, Phy.D.

Dr. Mendelssohn, who is board certified in clinical psychology and

19

neuropsychology, submitted a February 24, 2011 Peer Physician Review.

20

Dr. Mendelssohn prefaced her report by noting that most of the records she reviewed

21

pertain to Mason’s “physical complaints” related to SPS, and therefore she deferred “to

22

the appropriate medical specialists to determine the impact of [Mason’s] medical

23
24
25

105

Id. at 260.

26

106

27

107

28

108

Id. at 259.
Doc. 32-3 at 1.
Id.

-20-

1

complaints on his functionality.”109 Dr. Mendelssohn proceeded to evaluate Mason’s

2

neurological complaints in the records she reviewed. She ultimately concluded that

3

“clinical documentation does not support a functional impairment that would preclude

4

[Mason] from performing the essential duties of his own occupation from 12/1/10 to

5

forward.”110 Dr. Mendelssohn submitted a second Peer Physician Review on March 7,

6

2011, after receiving Combs’ email to review. In neither of these reviews did

7

Dr. Mendelssohn engage in a “peer-to-peer consultation” with any of Mason’s treating

8

physicians.111

9

With regard to the side effects of Mason’s medications, Dr. Mendelssohn noted

10

that “various treating providers included sporadic reports of [Mason’s] emotional and

11

cognitive difficulties,” but discounted this by concluding that none of those providers

12

“included specific measurements of [Mason’s] cognition or a description of direct and

13

observed behaviors to corroborate the presence of impairment in neuropsychological

14

functioning.”112

15

Dr. Mendelssohn noted that Dr. Dukarm’s neuropsychological exam diagnosed

16

Mason with a cognitive disorder secondary, in part, to the side effects of his

17

medications. But she then offered four reasons for why she discounted the results of

18

this test: (1) Mason continued to work afterward; (2) “there was no indication that

19

[Dr. Dukarm] utilized symptom validity measures to ensure adequate effort and

20

motivation and valid test findings; (3) “office visits just prior to and after the

21

neuropsychological examination noted that the claimant presented as alert and oriented

22

with normal attention and concentration;” and (4) “none of [Mason’s] providers indicated

23
24
25

109

Doc. 32-2 at 242.

26

110

27

111

28

112

Id. at 245.
Id. at 245, 249.
Id. at 245.

-21-

1

that the claimant was unable to work in relation to his neuropsychological status.”113

2

Dr. Mendelssohn made these four findings without the benefit of Dr. Madden’s records

3

or Combs’ email.

4

After reviewing Combs’ email that outlined Mason’s problems at work,

5

Dr. Mendelssohn maintained that Mason had not shown that he is disabled because:

6

(1) Combs’ report of Mason slurring words was not reflected in the documents that she

7

reviewed previously; (2) although Combs reported that Mason was falling asleep at

8

work, “there was no indication that [Mason] fell asleep during [Dr. Dukarm’s]

9

evaluation;” (3) “[a]lthough [Dr. Dukarm] noted that [Mason] appeared lethargic, more

10

specific description was not included;” and (4) there was no indication from Mason’s

11

various office visit notes that he was “falling asleep during his office visits nor did the

12

provided information include . . . description of overt cognitive difficulties.”114 Again,

13

Dr. Mendelssohn lacked Dr. Madden’s records when she made these findings.

14

Dr. Mendelssohn concluded that, although Combs’ report indicates “both physical and

15

cognitive difficulties,” “there continues to be a lack of clear and consistent description of

16

direct and observable behaviors to substantiate the presence of a functional

17

impairment.”115

18
19

b.)

Second Opinion From Leonard Schnur, Phy.D.

Dr. Schnur, who is board certified in psychology, submitted an August 9, 2011

20

Peer Physician Review. He was provided with Dr. Madden’s July 13, 2011 letter. With

21

regard to the side effects of Mason’s medications, Dr. Schnur’s report states that the

22

documentation he reviewed “referenced possible side effects from [Mason’s]

23

medication regimen for treatment of stiff-man syndrome, which apparently results in

24

drowsiness, sedation, and reduced concentration and attention.” Dr. Schnur declined

25
26

113

27

114

28

115

Id.
Id. at 249-50.
Id. at 250.

-22-

1

to comment on how these side effects impact Mason’s ability to work, however, stating

2

that Mason’s “medication regimen and any adverse medication side effects . . . would

3

go beyond the scope of [his] expertise and should be addressed by the appropriate

4

peer specialty.”116

5

3.

Aetna’s Neurology Peer Reviews

6
7

a.)

Vaughn Cohan, M.D.

Dr. Cohan, who is board certified in neurology, submitted a March 26, 2011 Peer

8

Physician Review. After describing the records he reviewed, Dr. Cohan states that

9

“[t]he neuropsychological and neurocognitive aspects of this case would fall outside the

10

scope of general medical neurology” and therefore he deferred to Dr. Mendelssohn

11

regarding those issues.117

12

Dr. Cohan describes a “peer-to-peer consultation” he had with Dr. Kim, who is a

13

family practitioner and not a neurologist, despite noting that Mason’s treating

14

neurologists are Dr. Downs and Dr. Meekins.118 According to Dr. Cohan, Dr. Kim stated

15

that Mason reported “that his cramping diminishes while on medications, but his

16

medications cause him to experience undesirable adverse sedative effect.”119 When

17

Dr. Cohan asked Dr. Kim “about his notes indicating that [Mason] appears in office to

18

be alert and oriented with no evidenced signs of over-sedation[,] Dr. Kim stated that the

19

claimant has reported to him that he does not take his medications prior to office visits

20

so that be may interact with medical provider optimally.”120 According to Dr. Cohan,

21

Dr. Kim stated that he had never observed Mason overly sedated or cognitively

22
23
116

24
25

Doc. 32-3 at 6.

117

Doc. 32-2 at 265.

26

118

27

119

28

120

Id. at 245, 249.
Id. at 265.
Id.

-23-

1

impaired and indicated “that there is no apparent phy sical impairment that would

2

preclude performance of desk work.”121

3

Dr. Cohan relied heavily on Dr. Kim’s statements in his report. He states that

4

“[a]lthough there are references to over-sedation in the medical record and as

5

submitted by one of the claimant’s coworkers/managers, nevertheless, there is no

6

independent medical verification or substantiation to that effect. When the claimant has

7

been seen medically by medical providers, there has been no report of objective excess

8

sedative or medication effect.”122 (Dr. Cohen was provided with Dr. Madden’s records

9

and he claims that he reviewed them.)123 Dr. Cohen concluded that “the documentation

10

provided fails to demonstrate objective evidence of a functional impairment for the

11

claimant’s own sedentary occupation from 12/1/10 to the present.” 124

12
13

b.)

Second Opinion From Andrew J. Gordon, M.D.

Dr. Gordon, who is board certified in neurology, submitted an August 11, 2011

14

Peer Physician Review. Mason asserts that “Dr. Gordon was the only reviewer hired by

15

Aetna that did not appear to be ‘in house.’ He apparently works for MES.”125 After

16

reviewing Mason’s records, including those from Dr. Madden, Dr. Gordon concluded

17

that “there is significant objective clinical documentation that reveals a functional

18

impairment that would preclude [Mason] from performing the essential duties of [his]

19

own occupation which is a sedentary demand level from 12/01/10 through current.”126

20

He supported this conclusion with the following evidence:

21
22
121

23

Id.

122

24
25

Id. at 266.

123

Id. at 264.

26

124

27

125

28

126

Id. at 266.
Doc. 55 at 23.
Doc. 32-3 at 11.

-24-

1
2
3
4
5
6

The claimant is described by numerous doctors including two neurologists
as having Stiff Man Syndrome. He tests positive twice (blood work).
There are numerous notes indicating refractory spasms, cramping and
poor work performance resulting from these symptoms. Evaluation and
testing has excluded other diagnoses. The claimant is described as
responding poorly to usual treatment and he is described as suffering
from side effects with treatment which include lethargy and sleepiness. A
supervisor at work documents his inability to properly perform his duties
and gives numerous examples of his impairments that have occurred as a
result of Stiff Man Syndrome. Finally, the treating neurologist notes that
the claimant cannot work due to refractory symptoms and resultant
functional impairment.127

7
In response to this report, Aetna sent Dr. Gordon the f ollowing message:
8
“Dr. Gordon please clarify: You found the claimant to be impaired from 12/01/10
9
through current however; [sic] your report and findings were based on the medical data
10
dated prior to the disability date under consideration of 12/01/10. Please review and
11
comment on the medical data, physical exam findings that demonstrate a functional
12

impairment for the time period under review (12/01/10 through current).”128

13
About one month later, Dr. Gordon submitted a second review in which he states
14
that Aetna’s request for “clarification” changed his prior recommendation, and he now
15
concludes that Mason has not shown that he is disabled. Dr. Gordon asserts that
16
“records from earlier periods (early 2010 and before) document more significant
17
difficulties with spasticity, gait impairment and altered mental status,” but “the more
18
recent records from 12/1/10 onward do not demonstrate functional impairment from a
19

neurologic perspective.”129 Dr. Gordon did not engage in a peer-to-peer consultation

20
with any of Mason’s treating physicians.
21
22
23
24
25
26

127

27

128

28

129

Id.
Id. at 14-15.
Id. at 15.

-25-

1
2

III. STANDARD OF REVIEW
A.

The Abuse of Discretion Standard Applies

3

To determine which standard of review applies in an ERISA benefits case, the

4

court must determine whether the ERISA plan unambiguously grants discretion to the

5

administrator.130 “[B]y default, review of denial of ERISA benefits is de novo” and for

6

the administrator “to obtain the more lenient abuse of discretion standard of review, a

7

plan must unambiguously so provide.”131 Here, the parties agree that the benefit plan at

8

issue gives the administrator, Aetna, discretionary authority to determine benefits

9

eligibility.132 The court will therefore review Aetna’s determination for abuse of

10

discretion.133 Under the abuse of discretion standard, courts consider all of the relevant

11

circumstances and defer to the administrator’s decision so long as it is reasonable. 134

12

That is, courts defer “to the administrator’s benefits decision unless it is ‘(1) illogical,

13

(2) implausible, or (3) without support in inferences that may be drawn from the facts in

14

the record.’”135

15

Determining that the abuse of discretion standard applies “is only the first step” in

16

determining the standard by which courts review an administrator’s denial of benefits.136

17

Even where the court must “nominally review for abuse of discretion, the degree of

18

deference” that the court will accord to an administrator’s decision can vary significantly

19
130

Pac. Shores Hosp. v. United Behavioral Health, 764 F.3d 1030, 1039 (9th Cir. 2014).

20
21

131

22

132

23

133

24

Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 673 (9th Cir. 2011).
Doc. 55 at 28; Doc. 59 at 16.

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (citing
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).
134

Pac. Shores Hosp., 764 F.3d at 1042.

25
26

135

Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir. 2012) (quoting
Salomaa, 642 F.3d at 676).

27
28

136

Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 867 (9th Cir.

2008).

-26-

1

depending on the presence of a conflict of interest137 or procedural irregularities138 in the

2

record. Here, on account of the significant conflict of interest and procedural

3

irregularities presented, the court concludes that Aetna’s decision is entitled to little

4

deference.

5

1.

Conflict of Interest

6

“[T]he degree of skepticism with which [courts] regard a plan administrator’s

7

decision when determining whether the administrator abused its discretion varies based

8

upon the extent to which the decision appears to have been affected by a conflict of

9

interest.”139 Where an administrator operates under a conflict of interest, that conflict

10

does not alter the standard or review itself, but it “‘must be weighed as a factor in

11

determining whether there is an abuse of discretion.’”140 In evaluating a conflict of

12

interest, the court must consider not only the terms of the underlying plan and the

13

medical evidence in the record, 141 but also the “nature, extent, and effect on the

14

decision-making process of any conflict of interest” and decide on the record as a whole

15

“how much or how little to credit the plan administrator’s reason for denying insurance

16

coverage.”142 Thus, if all of the other factors are “closely balanced,” a conflict of interest

17

“will act as a tiebreaker.”143

18
19
20
21

137

Id. at 868.

138

Abatie, 458 F.3d at 972.

22
139

23

Stephan, 697 F.3d at 929.

140

24
25
26
27
28

Abatie, 458 F.3d at 965 (quoting Firestone, 489 U.S. at 115).

141

Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 630 (9th Cir. 2009).

142

Abatie, 458 F.3d at 967-68. See also Salomaa, 642 F.3d at 681 (Hall, J., dissenting)
(“Although this standard’s dualism between skepticism and deference may seem strange, it is
the proper standard and must be applied carefully.”).
143

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008).

-27-

1

Mason argues that Aetna operates under a conf lict of interest because its

2

behavior is similar to the behavior of the administrators in Abatie,144 Saffon,145

3

Montour,146 and Salomaa.147 Those cases are not on all fours, however, because they

4

each involved a disability determination made by the same entity that funded the ERISA

5

plan. In Firestone, the Supreme Court “did not catalogue the full range of types of

6

conflicts of interest, but it suggested that a conflict exists when a plan administrator

7

(which acts as a fiduciary toward the plan participants, who are beneficiaries) is also the

8

sole source of funding for an unfunded plan.” 148 Administrators who operate under this

9

structural conflict of interest have an incentive “to pay as little in benefits as possible to

10

plan participants because the less money the insurer pays out, the more money it

11

retains in its own coffers.”149 This specific conflict is not present here because the Plan

12

is self-funded and maintained by FedEx.150 Aetna is the Plan’s “Claims Paying

13

Administrator”151 and, in that role, determines eligibility for Plan benefits.152

14
15

But that is not the end of the story. Mason also argues that a conflict of interest
exists here because “Aetna’s contract with FedEx depends on providing favorable

16
17
18
19
20
21
22

144

Abatie, 458 F.3d at 959.

145

Saffon, 522 F.3d at 866.

146

Montour, 588 F.3d at 626-27.

147

23

Salomaa, 642 F.3d at 674.

148

24
25

Abatie, 458 F.3d at 965 n.5 (citing Firestone, 489 U.S. at 105).

149

Abatie, 458 F.3d at 966.

26

150

27

151

28

152

Doc. 59 at 3 ¶¶ 3-4.
Doc. 32-6 at 1.
Id. at 3.

-28-

1

financial results for FedEx.”153 Aetna responds by calling this a “scandalous allegation”

2

that is “completely unfounded and not supported by any evidence in the record.” 154

3

Defendants do not dispute that FedEx pays benefits claims out of its own

4

undedicated funds. FedEx therefore has an obvious incentive to hire a Claims Paying

5

Administrator that minimizes benefits awards. According to the Supreme Court in

6

Glenn, an employer’s own conflict may “extend to its selection of an insurance company

7

to administer its plan.”155 In fact, it has been noted that “[a] so-called indepe ndent

8

administrator may have much more of an incentive to decide against claimants” than

9

either an employer or “an insurance company spending ‘its own money.’”156 These

10

“independent” administrators may have an incentive to “show how tough they are on

11

claims to better market their services to self-insured employers,” whereas insurance

12

companies “may have an incentive to be more liberal than is appropriate because its

13

experience-based premiums amount to a cost-plus contract, such that the m ore it

14

spends, the more it makes.”157 Similarly, an employer might “wish to slant its decisions

15

in favor of coverage in close cases” in order to “make working there attractive by means

16

of a reputation for good medical coverage,” among other reasons.158

17

It is apparent from the record that FedEx’s (and by extension, Aetna’s) conflict of

18

interest significantly colored the decision-making process. Nowhere is this conflict more

19

evident than with Aetna’s response to Dr. Gordon’s initial finding that Mason is disabled.

20

Aetna’s treatment of Dr. Gordon’s disability finding suggests bias for at least five

21
22
153

23

Doc. 55 at 37.

154

24
25

Doc. 59 at 23.

155

Glenn, 554 U.S. at 114.

26

156

27

157

28

158

Abatie, 458 F.3d at 977 (Kleinfeld, J., concurring).
Id.
Id.

-29-

1

reasons. First, Aetna’s request for “clarification” misleadingly implies that Dr. Gordon’s

2

initial report only considered medical data dated before December 1, 2010. 159 This is

3

not so: Dr. Gordon’s report also relies on Mason’s second blood test that cam e back

4

positive for SPS (dated December 7, 2010)160 and Dr. Downs’ June 10, 2011 letter. 161

5

Second, Mason asserts and Aetna does not deny that the Plan does not forbid

6

consideration of medical records that predate the date of the claim.162 It would be

7

illogical for it to do so.

8

Third, Aetna asked Dr. Gordon to submit a new report, ostensibly because he

9

relied on pre-December 2010 data, but it did not ask the sam e of its doctors who found

10

that Mason was not disabled, even though they, too, relied on such data. 163 It is unclear

11

why Aetna needed “clarification” from Dr. Gordon, but not Drs. Weinstein or

12

Mendelssohn.

13

Fourth, the date restriction that Aetna imposed on Dr. Gordon is inconsistent with

14

the scope of records upon which Aetna itself relied. For example, Aetna’s initial denial

15

letter references Mason’s September 2010 neuropsychological exam, and its final

16

denial letter relies on exam reports from July 16, 2010 and November 24, 2010.

17

Finally, Dr. Gordon’s supplemental report indicates that he was influenced by

18

Aetna’s suggestive request for “clarification.” Dr. Gordon’s second report concludes

19

that “[w]hile records from earlier periods (early 2010 and before) document more

20

significant difficulties with spasticity, gait impairment and altered mental status; the

21
22

159

23

160

24
25
26

Doc. 32-3 at 15.

See id. at 11 (noting that Mason tested “positive twice (blood work)” for SPS); id. at 10
(“Anti-GAD antibodies (diagnostic test for Stiff Man Syndrome) are positive (slightly elevated)
on 12/7/10 and significantly elevated on 2/24/10 and negative from 7/28/10.”).
161

Id. at 11 ([T]he treating neurologist notes that the claimant cannot work due to
refractory symptoms and resultant functional impairment.”).

27

162

28

163

Doc. 64 at 31.
See Doc. 32-2 at 243-45, 252-256, 259-60.

-30-

1

more recent records from 12/1/10 onward do not demonstrate functional impairment

2

from a neurologic perspective.”164 Dr. Gordon does not state what might have changed,

3

from a neurologic perspective or otherwise, that could explain this significant

4

improvement in Mason’s condition. Nor does he attempt to reconcile his conclusion

5

with the conclusion of Mason’s treating doctors that Mason’s disability was permanent

6

and progressive in nature.165

7

2.

Procedural Irregularities

8

“A procedural irregularity, like a conflict of interest, is a matter to be weighed in

9

deciding whether an administrator’s decision was an abuse of discretion.”166 If the

10

administrator “can show that it has engaged in an ‘ongoing, good faith exchange of

11

information between [itself] and the claimant’” and the evidence shows only a minor

12

procedural irregularity, the court should continue to give the administrator’s decision

13

broad deference.167 If the administrator’s “procedural defalcations are flagrant, de novo

14

review applies” and “the court is not limited to the administrative record and may take

15

additional evidence.”168 Most of the time, the procedural errors “are not sufficiently

16

severe to transform the abuse-of-discretion standard into a de novo standard” and in

17
18
164

19

Doc. 32-3 at 15.

165

20
21
22
23
24
25
26
27
28

Doc. 32-2 at 160 (“Probable duration of condition: life long”); id. at 161 (“[E]stimate the
beginning and ending dates for the period of incapacity: permanent”); id. at 194 (stating that
Mason’s SPS “has rendered him permanently disabled.”); id. at 198 (“I anticipate significant
clinical improvement by (date): never.”). See also id. at 8-9. These prognoses are consistent
with Dr. Meekins’ assessment of Mason’s SPS as progressive on July 28, 2010. Id. at 61. See
also id. at 172 (Dr. Lord noted on July 29, 2010, that Mason’s symptoms have “progressively
worsened and his symptoms are currently poorly controlled.”); id. at 173 (Dr. Lord noted on
August 16, 2010, that Mason’s SPS had “deteriorated”); id. at 188 (Dr. Lord noted on
October 28, 2010, that Mason’s SPS had “deteriorated”).
166

Abatie, 458 F.3d at 972.

167

Id. (quoting Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income Prot.
Plan, 349 F.3d 1098, 1107 (9th Cir. 2003)).
168

Id. at 973.

-31-

1

such instances the court must “weigh any procedural errors as a factor in determining

2

whether [the administrator] abused its discretion.” 169

3

Saffon is instructive. In Saffon the claimant was receiving disability benefits on

4

account of degeneration of her cervical spine.170 When MetLife, her plan administrator,

5

commissioned a doctor to review her medical records, the doctor determined that the

6

claimant’s file lacked “detailed, objective, functional findings or testing which would

7

completely preclude” the claimant’s return to work.171 MetLife forwarded its doctor’s

8

report to the claimant’s treating neurologist, who then submitted to MetLife a note

9

explaining why the claimant’s previous MRI was objective evidence of her cervical

10

pathology. MetLife’s doctor was unpersuaded by this submission, and MetLife

11

terminated the claimant’s benefits. The termination letter stated that the claimant could

12

appeal this determination by providing, among other things, “objective medical

13

information to support [her] inability to perform the duties of [her] occupation.” 172

14

Although the claimant submitted additional evidence on appeal, Metlife’s second

15

reviewing doctor reached the same conclusion as its first: there was “‘not enough

16

objective medical findings and office notes’” showing that the claimant’s “‘self-reported

17

headache and chronic pain syndrome has been enough to preclude her from’

18

working.”173 MetLife affirmed the termination.

19

The Ninth Circuit held that MetLife’s termination was riddled with procedural

20

errors. It held that MetLife’s termination letter was insufficient for at least three reasons.

21

First, although the letter notes that “‘[t]he medical information provided no longer

22

provides evidence of disability that would prevent [the claimant] from performing [her]

23
169

24
25

Pac. Shores Hosp., 764 F.3d at 1040. See also Abatie, 458 F.3d at 972.

170

Saffon, 522 F.3d at 866.

26

171

27

172

28

173

Id. at 869.
Id.
Id. at 869-70.

-32-

1

job or occupation,’” it does not “explain why that is the case, and certainly does not

2

engage [the claimant’s treating neurologist’s] contrary assertion.” Second, although the

3

letter suggests that the claimant can “appeal by providing ‘objective medical information

4

to support [her] inability to perform the duties of [her] occupation,’” it “does not explain

5

why the information [she] has already provided is insufficient for that purpose.” 174 And

6

third, if MetLife believed that it was necessary for the claimant to present some means

7

for objectively testing the claimant’s ability to perform her job, such as a “Functional

8

Capacity Evaluation,” MetLife “was required to say so at a time when [the claimant] had

9

a fair chance to present evidence on this point.” 175 In addition to these errors related to

10

the notice, the court also faulted MetLife for communicating directly with the claimant’s

11

doctors without advising her of the communication and taking “various of her doctors’

12

statements out of context or otherwise distorted them in an apparent effort to support a

13

denial of benefits.”176

14
15

The procedures that Aetna followed in this case are even more flawed that those
at issue in Saffon.

16

a.

Aetna’s Notices Are Deficient

17

ERISA plan administrators “must follow certain practices when processing and

18

deciding plan participants’ claims.”177 For example, 29 C.F.R. § 2560.503-1 provides

19

that an ERISA plan administrator investigating a claim must engage in “a meaningful

20

dialogue” with the beneficiary.178 “If benefits are denied in whole or in part, the reason

21
22
174

23

Id. at 870.

175

24
25
26
27
28

Id. at 871.

176

Id. at 873.

177

Abatie, 458 F.3d at 971.

178

Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997) (citing
former 29 C.F.R. § 2560.503-1(f)). The pertinent language is now codified at 29 C.F.R.
§ 2560.503-1(g).

-33-

1

for the denial must be stated in reasonably clear language, with specific reference to

2

the plan provisions that form the basis for the denial; if the plan administrators believe

3

that more information is needed to make a reasoned decision, they must ask for it.”179

4

Aetna’s March 28, 2011 denial notice analyzes hundreds of pages of Mason’s

5

medical records in one paragraph containing a series of disjointed sentences. 180 Like

6

the notice in Saffon, it does not clearly explain to the claimant what was necessary to

7

perfect the claim. Although Aetna informs Mason that he was required to submit

8

“medical documentation that clearly states the significant objective findings that

9

substantiate [his] disability,” such as physician exam reports, office notes, or diagnostic

10

test results such as lab tests, 181 it does not clearly inform him of the specific reasons

11

why its reviewers found that the evidence he already submitted was insufficient. For

12

example, it does not clearly state that Aetna would disregard his diagnostic test results

13

if they do not contain “consistency or validity testing results.”182 If Aetna believed that

14

validity testing results were necessary, it was required to say so “in a manner calculated

15
16
17
18
19
20
21

179

Booton, 110 F.3d at 1463. See also 29 C.F.R. § 2560.503-1(g)(1) (requiring, among
other things, that notices of adverse benefit determinations must set forth “in a manner
calculated to be understood by the claimant:” (i) “[t]he specific reason or reasons for the
adverse determination;” (ii) “[r]eference to the specific plan provisions on which the
determination is based;” and (iii) “[a] description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why such material or
information is necessary.”).
180

Doc. 32-2 at 4.

22

181

23

182

24
25
26
27
28

Id. at 5.

See Dr. Mendelssohn’s first report, id. at 243-44 (“Dr. Dukarm noted that the claimant
appeared lethargic, and the claimant reported having a headache and experiencing pain.
There was no indication that formal measures of validity were utilized to ensure valid test
results.”); id. at 245 (rejecting Dr. Dukarm’s cognitive disorder diagnosis in part because “there
was no indication that the examiner utilized symptom validity measures to ensure adequate
effort and motivation and valid test findings.”); Dr. Mendelssohn’s second report, id. at 249 (“[I]n
my previous review I questioned the presence of whether the claimant’s test performance was
reflective of valid test findings. However, validity could not be determined given that there was
no indication that the examiner administered symptom validity measures to ensure optimal
effort and motivation and validity of the neuropsychological evaluation.”).

-34-

1

to be understood by”183 Mason at a time when he had a meaningful opportunity to

2

present evidence on this point.

3

The record is replete with similar examples. Aetna’s denial notice does not

4

disclose to Mason that Dr. Mendelssohn discounted his doctors’ observ ations of his

5

emotional and cognitive difficulties because those doctors did not include “specif ic

6

measurements of [Mason’s] cognition or a description of direct and observed behaviors

7

to corroborate the presence of impairment in neuropsychological functioning.”184 Nor

8

does it disclose to him that Dr. Weinstein discounted an exam finding that he had an

9

irregular gait because there was “no documentation of abnormal muscle tone on

10

specific muscle testing or other musculoskeletal or neurologic examination

11

abnormalities.”185 Or that Dr. Weinstein discounted his somnolence complaints

12

because there was “no documentation of pathologic hypersomnolence, difficulty with

13

communication in the office visits, or significant cognitive impairments.”186 Or that

14

Dr. Weinstein found that Mason’s file was lacking “documentation of consistently

15

abnormal musculoskeletal or neurologic examination findings.”187 Aetna’s failure to

16

disclose these alleged deficiencies to Mason, “a maneuver that has the effect of

17

insulating [its] rationale from review, contravenes the purpose of ERISA.”188

18

Further, when Dr. Kim filled out Aetna’s “Attending Physician Statement” form,

19

he listed numerous diagnostic test results that, in his opinion, were “objective data” that

20

document Mason’s disability, including the lab tests that confirmed Mason’s

21
22
183

23

29 C.F.R. § 2560.503-1(g)(1).

184

24
25

Doc. 32-2 at 245.

185

Id. at 255.

26

186

27

187

28

188

Id. at 256.
Id. 32-2 at 260.
Cf. Abatie, 458 F.3d at 974.

-35-

1

diagnosis.189 If Aetna believed that these test results did not contain “significant

2

objective findings that substantiate” his disability, it was required to say so and explain

3

why not. Aetna’s denial letter makes no mention of Mason’s lab tests; it vaguely

4

concludes that Dr. Kim “was unable to provide any objective findings or clinical

5

observations to correlate with your subjective complaints due to diagnosis of stiff person

6

syndrome.”190

7

b.

Aetna Failed to Engage in a Good Faith Exchange of
Information

8
In determining the degree of deference to which an administrator is entitled,
9

courts must also consider its course of dealing with the claimant and her doctors. 191 In

10
Saffon the Ninth Circuit chided the plan administrator for only communicating the
11
results of its reviewing physician’s findings with the claimant’s doctor and not also the
12
claimant herself. Aetna did substantially worse here by providing none of its reviewing
13
doctors’ reports to either Mason or his physicians at any point during the administrative
14

process.192 Aetna’s initial denial letter fails to provide Mason with even its reviewers’

15
names, identifying them only as “independent peer physicians specializing in internal
16
17

medicine, neurology, and neuropsychology.”193 Without any way for his treating doctors
to confer with Aetna’s doctors, or to submit reports that respond to Aetna’s reports,

18
Aetna significantly hindered Mason’s ability to develop the administrative record.
19
20
21
22
23
189

24
25

Doc. 32-2 at 198.

190

Id. at 4.

26

191

27

192

28

193

Saffon, 522 F.3d at 873.
Doc. 55 at 36.
Doc. 32-2 at 4.

-36-

1

Defendants argue that Mason had no right to review and rebut its peer review

2

reports “generated during the appeal process.” 194 Even assuming this is true,

3

Defendants confuse the issue. The problem is not that Aetna failed to disclose to

4

Mason the reports that Drs. Mazal, Schnur, and Gordon generated during the appeal

5

process, but rather the reports from Drs. Weinstein, Mendelssohn, and Cohan upon

6

which Aetna relied when it initially denied Mason’s claim.195 The Ninth Circuit has held

7

that where an administrator does not give the claimant, her attorney, or her physicians

8

access to the medical reports of its own physicians upon which it relied, this violates the

9

claimant’s statutorily right to a “full and fair” review of the denial.196

10

What is more, Aetna even failed to provide its own reviewers with pertinent

11

records. As Mason observes, Aetna failed to provide Dr. Weinstein or Dr. Mendelssohn

12

with any records from his treating psychologist, Dr. Madden.197 Defendants dispute this,

13

and assert that “Dr. Mendelssohn’s report specifically states that Dr. Mendelssohn

14

reviewed at least fourteen medical notes from [Dr. Madden]. Dr. Mendelssohn also

15

commented on these records directly in her report.”198 This is false. Defendants

16

support their factual assertions with a citation to Aetna’s March 28, 2011 denial letter,

17
18
194

19
20
21
22
23
24
25

Doc. 73 at 8 (citing Midgett v. Washington Grp. Int’l Long Term Disability Plan, 561
F.3d 887, 896 (8th Cir. 2009); Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161, 1166
(10th Cir. 2007); Warming v. Hartford Life & Acc. Ins. Co., 663 F. Supp. 2d 10, 20 (D. Me.
2009); Winz-Byone v. Metro. Life Ins. Co., No. EDCV 07-238-VAP, 2008 WL 962867, at *8
(C.D. Cal. Mar. 26, 2008)).
195

See Metzger, 476 F.3d at 1166 (holding that although plan administrators must
release documents relied upon during the initial benefit determination, they need not release
“documents generated during the appeal process itself.”); Midgett, 561 F.3d at 896 (“[T]he full
and fair review to which a claimant is entitled under 29 U.S.C. § 1133(2) does not include
reviewing and rebutting, prior to a determination on appeal, the opinions of peer reviewers
solicited on that same level of appeal.”) (emphasis added).

26

196

27

197

28

198

Salomaa, 642 F.3d at 679 (citing 29 U.S.C. § 1133).
Doc. 32-2 at 247-48.
Doc. 73 at 7.

-37-

1

not Dr. Mendelssohn’s reports. 199 Neither of Dr. Mendelssohn’s reports state that she

2

reviewed any records from Dr. Madden200, and Dr. Mendelssohn does not comment on

3

any of Dr. Madden’s records in either of her two reports.201

4

This particular deficiency was likely significant to Dr. Weinstein’s and

5

Dr. Mendelssohn’s findings. Dr. Mendelssohn concludes that none of the records that

6

Aetna provided her show that Mason “was falling asleep during his office visits nor did

7

the provided information include . . . description [sic] of overt cognitive difficulties.”202

8

Similarly, Dr. Weinstein states that “there has been no docum entation of pathologic

9

hypersomnolence, difficulty with communication in the office visits, or significant

10

cognitive impairments.”203 If Drs. Weinstein and Mendelssohn had been provided with

11

Dr. Madden’s records, they would have learned that for each of Mason’s 14 visits with

12

Dr. Madden, spanning approximately six months, Dr. Madden’s mental status exams

13

noted that Mason was “lethargic.”204 Had they followed up with Dr. Madden about what

14

she meant, Dr. Madden would have likely informed them that Mason was “very tired”

15

during his therapy sessions and had fallen asleep “despite a valiant effort to stay

16

awake.”205

17
18
19
20
21

199

Doc. 32-2 at 4.

200

Id. at 241-42, 247-48.

22
201

23

Id. at 241-46, 247-50.

202

24
25
26
27
28

Id. at 249-50.

203

Id. at 256.

204

Id. at 63, 66, 72, 81, 83, 88, 91, 94, 97, 103, 106, 110, 113, and 117.

205

Id. at 13. Although Defendants correctly note that Dr. Schnur was provided with
Dr. Madden’s records, he made no findings regarding the side effects of Mason’s medications,
stating that he lacked necessary expertise to do so. Doc. 32-3 at 6.

-38-

1

Finally, Aetna’s physicians erred by not engaging in peer-to-peer consultations

2

with Mason’s physicians to resolve perceived ambiguities in Mason’s records.206 For

3

example, Dr. Weinstein noted that Dr. Lord observed Mason in “moderate pain and

4

distress,” but discounted this finding because Dr. Lord provided “no details of specific

5

observations.”207 Yet Dr. Weinstein’s report does not indicate that she contacted

6

Dr. Lord to obtain more details about what he observed, despite the fact that Dr. Lord

7

invited Aetna to contact him with “any further concerns or questions.”208 Similarly,

8

Dr. Mendelssohn noted that Dr. Dukarm observed that Mason “appeared lethargic”

9

during his neuropsychological test, yet she discounted this observation because “more

10

specific description [sic] was not included.” 209 Dr. Mendelssohn’s report does not

11

indicate that she contacted Dr. Dukarm to obtain clarification of what he specifically

12

meant by “lethargic.” The Ninth Circuit’s description of Aetna’s efforts in Booton is

13

equally apt here: “Lacking necessary- and easily-obtainable information, Aetna made its

14

decision blindfolded.”210

15

B.

16

A Bench Trial on the Record Would be Improper
The parties dispute whether the proper vehicle for determining Mason’s benefit

17

claim is a “bench trial on the record” followed by a judgment that complies with Rule 52

18

or summary judgment under Rule 56. Relying on Kearney v. Standard Insurance

19

Company,211 Mason argues that “the proper procedure in ERISA cases involving the

20
21
22
23

206

The only Aetna physician that reached out to one of Mason’s treating physicians was
Dr. Cohan, but this was not a true “peer-to-peer” consultation because Dr. Cohan, a
neurologist, inexplicably did not consult with Mason’s neurologists but instead Dr. Kim, a
general practitioner. Doc. 32-2 at 265.
207

24
25

Id. at 260.

208

Id. at 172.

26

209

27

210

28

211

Id. at 249.
Booton, 110 F.3d at 1463.
175 F.3d 1084 (9th Cir. 1998) (en banc).

-39-

1

review of the denial of benefits is a ‘trial on the record.’” 212 Mason asserts that, “[s]ince

2

Kearney, the Ninth Circuit has reaffirmed [that] a ‘trial on the record’ is the correct

3

approach” in Thomas v. Oregon Fruit Products Co.213 Under this approach, Mason

4

argues, the court can “decide what the facts are.”214

5

Mason is essentially seeking to transform this abuse-of-discretion case into one

6

involving de novo review. But, because the cases upon which his argument relies

7

involve de novo review, his argument misses the mark.215 It is true that in ERISA cases

8

decided under the de novo standard courts may conduct trials on the record. This is

9

because those courts are tasked with evaluating evidence and making credibility

10

determinations anew.216 Such trials are not appropriate in abuse-of-discretion cases,

11

however. As the Ninth Circuit explained in Bendixen v. Standard Ins. Co., “it is

12

important to keep in mind that the remand and reversal of the summary judgment in

13

[Kearney] depended upon the application of de novo review by the district court.”217 In

14
15

212

16

213

17
18
19

Doc. 55 at 2.

228 F.3d 991, 996 (9th Cir. 2000) (“Kearney clarifies that participants and
beneficiaries claiming benefits under ERISA are not entitled to ‘full trial[s] de novo’ because
such trials would undermine the policies behind ERISA. Rather, Kearney created a ‘novel form
of trial,’ in which the district court, subject to its discretion to consider additional evidence under
limited circumstances, is to conduct ‘a bench trial on the record.’”) (citing Kearney, 175 F.3d at
1094, 1095 & n.4).

20

214

21

215

22
23
24
25
26
27
28

Doc. 64 at 2.

See Kearney, 175 F.3d at 1095-96; Thomas, 228 F.3d at 994 (“As in Kearney, the
district court should have reviewed Thomas’ claim de novo.”); O’Neal v. Life Ins. Co. of N. Am.,
10 F. Supp. 3d 1132, 1135 (D. Mont. 2014). But see Tapley v. Locals 302 & 612 of Int’l Union
of Operating Engineers-Employers Const. Indus. Ret. Plan, 728 F.3d 1134, 1139 (9th Cir. 2013)
(the district court conducted a trial on the record despite the fact that the abuse of discretion
standard of review applied). Because the Ninth Circuit did not address the propriety of the
district court’s procedural choice on appeal and, in any event, reversed the court’s judgment,
Tapley is not binding authority on this issue. Id. at 1139-43.
216

Kearney, 175 F.3d at 1095.

217

185 F.3d 939, 942-43 (9th Cir. 1999) (overruled on other grounds by Abatie, 458 F.3d

at 965).

-40-

1

cases where the abuse of discretion standard applies, whether the administrator

2

abused its discretion is a question of law, not fact, based on a review of the

3

administrative record, as opposed to a trial. 218 Because a motion for summary

4

judgment is “the conduit to bring [that] legal question before the district court,”219

5

Mason’s motion for a post-trial judgment under Rule 52 will be denied.

6

C.

Summary Judgment Principles Have Limited Application

7

Because of the limited nature of review, “[t]raditional summary judgment

8

principles have limited application in ERISA cases governed by the abuse of discretion

9

standard.”220 Thus, “the usual tests of summary judgment, such as whether a genuine

10

dispute of material fact exists,” generally do not apply.221

11
12
13

IV. DISCUSSION
A.

FedEx Trade Is Not a Proper Party
Defendants argue that Mason’s employer, FedEx Trade, is not a proper party to

14

this action because it is only a “Controlled Group Member” and “Sponsoring Employer,”

15

and it does not exercise any control over the plan as an administrator or otherwise.222

16

In Cyr v. Reliance Standard Life Ins. Co., the Ninth Circuit held that “liability under 29

17

U.S.C. § 1132(a)(1)(B) is not limited to a benefits plan or the plan administrator,”223 but

18

did not define the precise limitations of ERISA liability. In Spindex Physical Therapy v.

19

United Healthcare of Arizona, the court provided some guidance: “proper defendants

20

under § 1132(a)(1)(B) for improper denial of benefits at least include ERISA plans,

21
22
218

23

Nolan v. Heald Coll., 551 F.3d 1148, 1154 (9th Cir. 2009).

219

24
25

Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999)

220

Stephan, 697 F.3d at 929.

26

221

27

222

28

223

Nolan, 551 F.3d at 1154.
Doc. 59 at 16-17.
642 F.3d 1202, 1207 (9th Cir. 2011).

-41-

1

formally designated plan administrators, insurers or other entities responsible for

2

payment of benefits, and de facto plan administrators that improperly deny or cause

3

improper denial of benefits.”224

4

Mason responds by stating that he is not pursuing a § 1132(a) claim against

5

FedEx Trade, but rather a claim that arises under § 1132(c) for FedEx Trade’s violation

6

of 29 U.S.C. § 1024(b)(4) and 29 C.F.R. § 2560.503-1(h)(2)(iii). 225 This argument fails

7

because, as Defendants point out, § 1132(c) actions may only be brought against plan

8

administrators.226 Mason does not dispute that FedEx Trade is not the Plan’s

9

administrator. Summary judgment will be granted in FedEx Trade’s favor.

10
11

B.

Aetna Abused Its Discretion
The court finds that, based on the record that Aetna had bef ore it, Aetna abused

12

its discretion in denying Mason’s claim. The evidence in the record shows that Mason

13

suffers from a permanent disability that prevents him from working. Aetna’s conclusion

14

to the contrary is illogical, implausible, and not supported by the facts.

15

1.

Evidence of Mason’s Medical Conditions

16

As noted above, the fundamental basis of Mason’s claim is his contention that he

17

can no longer work because he suffers from a combination of (1) painful spasms and

18

(2) the negative side effects from the medication he takes for those spasms.

19
20

a.)

SPS Symptoms

There is ample objective evidence in the record showing that Mason suffers from

21

painful spasms, including Mason’s blood tests that came back positive for SPS and

22

exam notes that show Mason has been repeatedly observed suffering from symptoms

23
24

224

25

225

26
27
28

770 F.3d 1282, 1297 (9th Cir. 2014).
Doc. 64 at 27.

226

29 U.S.C. § 1132(c) (“Any administrator . . . who fails or refuses to comply with a
request for any information which such administrator is required by this subchapter to furnish to
a participant or beneficiary . . . may in the court’s discretion be personally liable to such
participant or beneficiary . . . .”) (emphasis added).

-42-

1

typical of this disease: spasms, pain, and stiffness.227 Mason’s April 27, 2011

2

emergency department physical exam notes, for example, state that Mason’s

3

extremities were stiff and he was suffering from painful spasms.228 And his May 11,

4

2011 emergency room notes state that Mason was observed suffering from “severe”

5

“whole body spasms.”229 Contrary to Aetna’s conclusion, these are “objective findings”

6

that substantiate Mason’s self-reported symptoms.

7

Inexplicably, both of Aetna’s denial notices fail to mention Mason’s positive lab

8

results. Aetna’s final denial notice also does not connect his spasm s with his SPS

9

diagnosis, stating only that the data show that Mason “had stiffness and muscle

10

pain.”230 Although that notice does summarize the two emergency room records

11

mentioned above, Aetna distorts their significance and omits reference to relevant facts

12

in an apparent effort to support a denial. The only aspect of Mason’s April 27

13

emergency department notes that Aetna mentions is that they do not “reveal any

14

neurological defects.”231 And with regard to Mason’s May 11 emergency department

15

notes, Aetna states only that they show Mason “had stiffness and muscle pain,” but his

16

“motor power and sensation were normal.”232 Aetna selectively ignores the objective

17

evidence that shows Mason was suffering from painful spasms. Selective consideration

18

of evidence is a hallmark of arbitrary and capricious decision-making.233

19
20
21

227

See, e.g., Doc. 32-2 at 23, 49, 56, 163, 173.

228

Id. at 36.

22
229

23

Id. at 23.

230

24
25
26
27
28

Doc. 32-1 at 1.

231

Doc. 32-1 at 2.

232

Id.

233

See Glenn, 554 U.S. at 118 (holding that selective consideration of evidence is a
proper grounds for setting aside an administrator’s decision); Holmstrom v. Metro. Life Ins. Co.,
615 F.3d 758, 777 (7th Cir. 2010).

-43-

1

b.)

Medication Side Effects

2

Aetna does not dispute that Mason’s medications can potentially cause side

3

effects of sedation and cognitive impairment; it does dispute that Mason was in fact

4

suffering from them.234 But, again, Aetna selectively ignores evidence in the record.

5

Ample evidence in the record shows that Mason’s medication had a sedative

6

effect, including all 14 visit notes from Dr. Madden, various visit notes from other

7

doctors,235 notes from Dr. Kim,236 Dr. Madden,237 and Dr. Grant,238 and Combs’ email.

8

Aetna’s final denial letter mostly fails to mention this evidence. It does mention

9

Dr. Madden’s November 24, 2010 office visit note, but selectively omits Dr. Madden’s

10

description of Mason’s consciousness as lethargic,239 and instead focuses solely on

11

Dr. Madden’s other observations that do not support a disability finding.240 Aetna’s

12

initial denial letter concludes that there is no objective proof that Mason suffers from

13
14
15
16
17
18
19
20
21

234

See Dr. Cohan’s report, doc. 32-2 at 266 (“Although the claimant does take
medications which have potential adverse side effects, including sedation, nevertheless there is
no objective data in the medical records provided to substantiate that the claimant has
experienced those adverse medical side effects.”).
235

See Dr. Dukarm’s report, doc. 32-2 at 75 (“His affect appeared obtunded . . . . The
patient appeared lethargic . . . .”); Dr. Downs’ April 29, 2010 note, id. at 148 (“His attention span
and concentration are slightly reduced, and he appears somewhat somnolent.”); Dr. Lord’s May
5, 2010 office note, id. at 150 (physical exam describes Mason as “fatigued”); Dr. Lord’s May 7,
2010 office note, id. at 152 (same); Providence Alaska Medical Center’s January 11, 2011
emergency report, id. at 48 (“He did take diazapam and Zanaflex that has improved his
symptoms. When he initially checked in, his pain [was] 9/10. Currently, he has minimal pain
and is sleeping.”); id. at 49 (“He is sleeping upon my arrival into the room, which was about 20
minutes after presentation.”).

22
236

23

Doc. 32-2 at 196, 198.

237

24
25
26
27
28

Id. at 13.

238

Id. at 121.

239

Id. at 94.

240

Doc. 32-1 at 1 (noting only that Dr. Madden described Mason’s mood as depressed,
his thought process as normal and coherent, his language as intact, and his speech as
spontaneous).

-44-

1

somnolence because it focuses only on the notes from Dr. Kim and Dr. Grant, which,

2

according to Aetna, did not “document any objective findings to indicate a functional

3

impairment such as significant sleepiness or disorientation during office visits.”241 Not

4

only does this conclusion ignore the contrary evidence in the record noted above, but

5

also ignores an explanation for why Dr. Kim and Dr. Grant did not observe Mason’s

6

sleepiness. Both Dr. Madden and Dr. Kim stated that Mason did not take his

7

medication before his doctors’ visits so that he could be awake and alert enough to

8

communicate, understand, and remember what was going on.242

9

Dr. Dukram’s neuropsychological test is also objective evidence that Mason

10

suffers from a cognitive disorder. Over the course of this four-hour exam, Dr. Dukram

11

subjected Mason to a litany of tests,243 the results of which led him to conclude that

12

Mason was exhibiting “variable neurocognitive performance deficits in the areas of

13

executive functioning” and diagnosed him with “Cognitive Disorder, NOS.”244 Aetna’s

14

final denial letter does not even mention these tests. Aetna’s initial denial letter does

15

mention them, but only to discount their medical significance based on dubious factual

16

grounds245 and naked speculation that Mason might not have been putting forth his best

17

effort during the exam.

18
19
20
21
22
241

23

Doc. 32-2 at 4.

242

24
25
26
27
28

Id. at 13, 265.

243

Id. at 75.

244

Id. at 77.

245

Although Aetna concludes that Dr. Dukarm did not note “significant sedation” during
testing, Dr. Dukarm described Mason as “lethargic” and his affect “obtunded.” Aetna’s
interpretation of Dr. Dukarm’s remarks is questionable.

-45-

1

2.

2

As Defendants point out, just because someone has a medical condition does

3

not by itself establish disability.246 Sometimes the person’s medical conditions are so

4

severe that the person cannot work, but other times “people are able to work despite

5

their conditions; and sometimes people work to distract themselves from their

6

conditions.”247 There is ample evidence here, however, that shows that the combined

7

effects of Mason’s conditions are severe enough to prevent him from working as a

8

manager for FedEx Trade.

9

Evidence of Mason’s Disability

Dr. Lord, Dr. Kim, and Dr. Grant each concluded that Mason is unable to w ork on

10

account of his medical conditions. Aetna’s denial notices do not consider these

11

significant opinions, let alone explain why these three treating physicians got it wrong.

12

Aetna also failed to consider Mason’s SSDI award as evidence of his disability. “Social

13

Security disability awards do not bind plan administrators, but they are evidence of

14

disability. Evidence of a Social Security award of disability benefits is of sufficient

15

significance that failure to address it offers support that the plan administrator's denial

16

was arbitrary, an abuse of discretion. Weighty evidence may ultimately be

17

unpersuasive, but it cannot be ignored.”248

18

Finally, Aetna failed to consider the only evidence in the record regarding

19

Mason’s actual performance at work: Combs’ email. In her email Combs states that

20

Mason fell asleep on the job “many times,” had difficulties focusing and remembering

21

things, and had become a “grave liability” for the company. Aetna’s two denial notices

22

completely ignore this probative evidence.

23
24
25
26
27
28

246

Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 880 (9th Cir.

2004).
247

Id.

248

Salomaa, 642 F.3d at 679. See also Bennett v. Kemper Nat. Servs., Inc., 514 F.3d
547, 555 (6th Cir. 2008).

-46-

1

Before receiving Combs’ email, Drs. Mendelssohn and Weinstein each

2

concluded that the side effects of Mason’s medications must not have been so bad

3

because he was still able to work.249 But, when Aetna presented Combs’ email to

4

Drs. Mendelssohn and Weinstein, showing otherwise, each doctor’s opinion remained

5

the same. Dr. Mendelssohn dismisses Combs’ description of Mason’s troubles at work

6

as not credible for dubious reasons, including her incorrect findings that the record

7

contained “no indication that [Mason] was falling asleep during his office visits”250 and

8

that there were no medical findings that Mason suffers from “overt cognitive

9

difficulties.”251 Dr. Weinstein’s second report is even less defensible. After providing

10

Dr. Weinstein with Combs’ email, Aetna asked her whether “the clinical data correlate[s]

11

with the symptoms exhibited at work to support an inability to perform his job

12

functions.”252 It appears that Dr. Weinstein did not even read Combs’ email because

13

her response begins: “It is not clear what symptoms were exhibited at work . . . .”253

14

Instead of asking Dr. Weinstein to clarify her answer, as it did with Dr. Gordon, Aetna

15

simply accepted her response.

16
17
18
19
20
21
22
23
24
25

249

Doc. 32-2 at 245 (Dr. Mendelssohn’s first report states, “It was opined [on
Dr. Dukarm’s report] that the claimant’s cognitive difficulties were multifactorial in nature
secondary to medications, pain, sleep disturbance, and depression. However, it is important to
note that the claimant continued to work despite findings from this evaluation.”); id. at 255-56
(Dr. Weinstein’s first report discounts Mason’s SPS symptoms because he had been suffering
from them “for over 15 years and this has not precluded him from working.” It also discounts
Dr. Dukarm’s findings because, “[d]espite the fact that this study was done on 9/27/10, it
appears the claimant was still able to perform his own occupation with the first date of absence
being listed as 11/10/10.”).
250

Id. at 250.

26

251

27

252

28

253

Id.
Id. at 260.
Id.

-47-

1

V. CONCLUSION

2

For the reasons set forth above, Plaintiff’s motion at docket 55 for judgment

3

pursuant to Rule 52 is DENIED. Summary judgment is GRANTED in favor of FedEx

4

Trade Networks Transport & Brokerage, Inc. In all other respects, Plaintiff’s motion for

5

partial summary judgment at docket 55 is GRANTED, and Defendants’ cross-motion for

6

partial summary judgment at docket 57 is DENIED. Defendants are hereby ORDERED

7

to grant Plaintiff’s claim for short-term disability benefits.

8

DATED this 22nd day of February 2016.

9
10

/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-48-