Demer v. IBM Corporation Long Term Disability Plan et al

Filing 55

ORDER denying 28 Motion for Summary Judgment; granting 34 Motion for Summary Judgment. The Clerk of Court shall enter judgment in favor of defendants and close its file in this matter. Signed by Judge Jennifer G Zipps on 9/30/2013.(BAR) Modified on 9/30/2013 to reflect WO (BAR).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Daniel G. Demer,
Plaintiff,
vs.
IBM Corporation Ltd. Plan and
Metropolitan Life Insurance Company,

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Defendants.

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CV-11-441-TUC-JGZ
ORDER

This matter arises under the Employment Retirement Income Security Act of 1974
(“ERISA”). Plaintiff Daniel G. Demer appeals Defendant MetLife’s denial of his application
for long term disability benefits. The parties have filed the following cross motions for
summary judgment and responses: Plaintiff’s Motion for Summary Judgment (Doc. 28);
Defendants’ Response to Plaintiff’s Motion for Summary Judgment and Defendants’ CrossMotion for Summary Judgment (Doc. 34); Plaintiff’s Reply in Support of Plaintiff’s Motion
for Summary Judgment and Plaintiff’s Response to Defendants’ Cross-Motion for Summary
Judgment (Doc. 41); and Defendants’ Reply in Support of Defendants’ Motion for Summary
Judgment. (Doc. 44.) For the following reasons, the Court will deny Plaintiff’s Motion for
Summary Judgment and grant Defendants’ Cross-Motion for Summary Judgment.
FACTUAL AND PROCEDURAL HISTORY
A.

The Plan
The IBM Corporation Long Term Disability Plan (the “Plan”) provides benefits for

participating employees who are “disabled” within the meaning of the Plan. (DSOF ¶ 1;

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PRDSOF ¶ 1.)1 MetLife is contracted to act as Claims Adjuster and to fund long term

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disability (“LTD”) benefits under the Plan. (Id.) The Plan provides:

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In carrying out their respective responsibilities under the LTD
Plan, the Plan Administrator and other Plan fiduciaries shall
have discretionary authority to interpret the terms of the LTD
Plan and to determine eligibility for and entitlement to LTD
Plan benefits in accordance with the terms of the LTD Plan.
Any interpretation or determination made pursuant to such
discretionary authority shall be given full force and effect,
unless it can be shown that the interpretation or determination
was arbitrary and capricious.

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(Doc. 36-3, Administrative Record (“AR”) 116.) The Plan thus delegates discretionary

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authority to MetLife to determine who is and is not disabled as that term is defined in the

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Plan. (DSOF ¶ 1; PRDSOF ¶ 1.)

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During the first twelve months of qualifying sickness or injury, a participant is

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“disabled” if he is unable to perform his regular duties with IBM because of sickness or

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injury. (DSOF ¶ 2; PRDSOF ¶ 2.) This is commonly known as the “own occupation”

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period. (Id.) After the expiration of twelve months, the Plan defines the term “disabled”

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differently; “disabled means that, because of a sickness or injury, you cannot perform the

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important duties of any other gainful occupation for which you are reasonably fit by your

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education, training, or experience.” (Doc. 36-3, AR 107.) This is commonly known as the

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“any occupation” period. (DSOF ¶ 3.) Among other limiting provisions, the Plan limits

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benefits for mental or nervous disorders, except schizophrenia, dementia, or organic brain

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disease, to a lifetime maximum of 24 months. (DSOF ¶ 7; PRDSOF ¶ 7.) Under the terms

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of the Plan, entitlement to benefits ends when the participant no longer qualifies as disabled

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or fails to provide proof of such disability. (Doc. 36-3, AR 113.) When a claim for disability

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is made, the claimant must provide written evidence that establishes the nature and extent of

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The parties’ statements of facts are abbreviated as follows: Plaintiff’s Statement
of Facts (Doc. 29) - “PSOF”; Defendants’ Statement of Facts (Doc. 35) - “DSOF”;
27 Defendants’ Controverting Statement of Facts (Doc. 35) - “DCSOF”; Plaintiff’s
Supplemental Statement of Facts (Doc. 42) - “PSSOF”; Plaintiff’s Response to
28 Defendants’ Statement of Facts (Doc. 43), “PRDSOF”; and Defendants’ Controverting
Statement of Facts to Plaintiff’s Supplemental Statement of Facts (Doc. 45) - “DCSOF2”.
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the loss or condition; MetLife’s obligation to pay the claim; and the claimant’s right to

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receive payment. (Doc. 36-1, AR 24.)

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B.

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Demer’s Claim for LTD Benefits under the “Own Occupation” Definition of
Disabled

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Demer was employed by IBM and a participant/member of its group disability

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coverage plan. (PSOF ¶ 1; DSOF ¶ 8.) Demer worked as the lead internal auditor/assessor

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and earned approximately $76,000 annually before his last day of work on January 9, 2009.

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(PSOF ¶ 2.) On that day, under the terms of the Plan, Demer began receiving Short Term

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Disability (“STD”) benefits, which he continued to receive until they expired on July 10,

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2009. (DSOF ¶ 8; PRDSOF ¶ 8.)

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On March 4, 2009, Demer applied for LTD benefits, asserting that he was “unable to

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do [his] job duties due to severe [and] recurrent depression and spinal stenosis, chronic

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headaches.” (Doc. 37-5, AR 1202.) Demer stated that his symptoms appeared in March of

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2008. (Id.) His symptoms included headaches, chronic neck and back pain, myalgia, and

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sciatica. (Id.) Demer also stated “I do not know when I will be able to perform the duties

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of my job.” (Id.) In support of his application for LTD benefits, Demer submitted the

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“Statement of Attending Physician” from his treating psychiatrist, Donald J. Garland, Jr., in

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which Dr. Garland diagnosed Demer’s primary ailment affecting work ability as a “major

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depressive episode.” (Doc. 37-5, AR 1230.) Dr. Garland determined that Demer was totally

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disabled but could return to work in approximately six months to one year. (Doc. 37-5, AR

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1231.)

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MetLife requested additional medical information from Demer to complete its

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evaluation. (DSOF ¶ 12; PRDSOF ¶ 12.) In response, Dr. Garland faxed an Initial

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Psychiatric History and Examination of Demer, which included notes from office visits.

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(Doc. 37-5, AR 1161-1176.) In addition to diagnosing Demer with severe depression, Dr.

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Garland noted that Demer suffered from Chronic Pain Syndrome and Bipolar Type II. (Doc

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37-5, AR 1175; Doc. 37-3, AR 1068-69.) Dr. Garland stated that Demer “is not currently

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able to engage in his usual occupation on a part or full time basis due to his problems with
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concentration, intrusive depressive ideation with significant difficulty making decisions. He

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would have problems in a work context due to his tearfulness and severe depression.” (Doc.

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37-3, AR 1069.)

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Demer’s chiropractor, David D. Heaton, D.C., who treated Demer from February 23,

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2009 to April 2009, also provided office notes to MetLife. (DSOF ¶ 14.) Dr. Heaton

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recommended that a functional capacity test be ordered. (Doc. 37-4, AR 1119-20.) Dr.

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Heaton noted that Demer would struggle to sit for periods of time over thirty minutes, he

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squirmed in his seat when speaking with the doctor for five minutes, he suffered headaches,

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and he could not lift, carry, or handle anything for any length of time over one hour; Dr.

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Heaton concluded, “Mr. Demers [sic] has significant stenosis and degenerative changes in

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his spine.” (Doc. 37-4, AR 1119.)

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MetLife also received office notes from Dr. Debra Weidman, Demer’s treating

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anesthesiologist. Following his chiropractic treatment, Demer returned to Dr. Weidman on

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April 7, 2009 for an epidural injection procedure. (Doc. 37-4, AR 1082.) Upon conducting

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a physical exam, Dr. Weidman stated that “[h]e is alert, conversant and oriented x3.” (Doc.

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37-4, AR 1083.) Dr. Weidman noted that “he really does not have much in the way of

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radicular pain into his upper extremity. This seems to have quieted down since I had last

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seen him for cervical epidural injection. He also tells me that his lumbar radioculopathy has

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been quiet and has not bothered him since 2007.” (Id.) Her assessment noted that Demer

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had a history of headaches, cervicogenic and tension; myofascial neck pain; mechanical

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cervical pain with degenerative disk and facet disease; history of tobacco use; and long term

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opiate therapy. (Id.)

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Demer’s treating neurologist, Dr. David Weidman, provided MetLife with an

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“Attending Physician Statement” based on an exam conducted on April 20, 2009. (Doc. 37-

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4, AR 1086-87.) With regard to Demer’s physical capabilities, Dr. David Weidman was of

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the opinion that Demer could sit and stand intermittently for four to five hours per day, walk

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six to seven hours intermittently per day, frequently lift up to ten pounds, occasionally lift

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up to twenty pounds, and never lift twenty-one to fifty pounds. (Doc. 37-4, AR 1086.) Dr.
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David Weidman commented that he believed Demer’s inability to work was due to multiple

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factors including “chronic pain and depression interact[ing] with each other,” and he did not

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expect improvement in these areas. (Id.) Dr. Weidman also submitted to MetLife the results

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of an Electromyography (“EMG”) conducted on July 21, 2009, which noted:“Normal study

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of left upper extremity. No evidence for a upper cervical radiculopathy on left.” (Doc. 37-3,

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AR 1056.)

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C.

MetLife Approves Demer’s “Own Occupation” Disability

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To assess Demer’s depression, MetLife retained Independent Physician Consultant

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(“IPC”) Ernest Gosline, M.D., F.A.P.A., Board Certified in Psychiatry, to review Demer’s

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medical records and prepare an assessment. (Doc 37-3, AR 1040-44.) Dr. Gosline

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concluded that Demer’s major depressive disorder, which is worsened by chronic pain,

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limited his ability to work full time at IBM beyond July 1, 2009. (Doc 37-3, AR 1041-42.)

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Based in part on Dr. Gosline’s assessment, MetLife determined that Demer met the

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“own occupation” definition of “disabled” under the terms of the Plan. (DSOF ¶ 23;

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PRDSOF ¶ 23.) Accordingly, on July 28, 2009, MetLife sent Demer a letter approving his

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claim for LTD benefits. (Id.) The letter informed Demer that his “primary diagnosis” was

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for a mental or nervous disorder, and therefore his LTD benefits are subject to a lifetime

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benefit period of 24 months. (Doc. 37-3, AR 1052.) The letter also reminded Demer that

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“after expiration of the [initial] 12 month period [of LTD benefits],” the definition of

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“disabled” would change to the “any occupation” standard. (DSOF ¶ 23; PRDSOF ¶ 23.)

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D.

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Demer’s Claim for LTD Benefits under the “Any Occupation” Definition of
Disabled

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On November 19, 2009, MetLife sent Demer a letter informing him that to continue

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receiving benefits beyond July 11, 2010, he “must be disabled from performing any

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occupation. . . .” (DSOF ¶ 24; PRDSOF ¶ 24.) The letter also requested additional medical

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information from Demer’s treating physicians. (Id.)

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On January 21, 2010, MetLife Claims Specialist Meera Forbes spoke on the telephone

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with Demer, who informed her that he continued to see his neurologist, Dr. David Weidman,
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his anesthesiologist, Dr. Debra Weidman, his primary care physician, Dr. Moore, and his

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psychiatrist, Dr. Garland. (Doc 38-1, AR 291-92.) Demer informed Forbes that he ceased

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using the Fentanyl patch because it made him drowsy and supplanted it with morphine

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sulphate 15 mgs 2x a day. (Doc 38-1, AR 292.) Demer stated that he was still in pain, but

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“his primary condition is still being treated by his psych MD.” (Id.) Demer also stated that

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he was to undergo a lumbar epidural procedure on January 26, 2010, to be performed by Dr.

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Debra Weidman. (Doc 38-1, AR 291-92.) MetLife requested that Demer update his medical

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information after he underwent the January 26, 2010 procedure. (Doc 38-1, AR 292.) The

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following is a synopsis of the medical information provided to MetLife in support of Demer's

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claim for LTD Benefits under the "any occupation" definition of disabled.

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1. Dr. Debra Weidman

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Dr. Debra Weidman, Demer’s treating anaesthesiologist, examined him on five

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occasions between August 25, 2009 and January 26, 2010. (Doc. 37-3, AR 998-1004.) In

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each physical exam, she noted that Demer was “alert, conversant and oriented x3.” (Id.)

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Demer received his first lumbar epidural steroid injection on September 15, 2009. (AR

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1002-03.) On December 9, 2010, Demer stated that his lower back and leg pain “definitely

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responded” to the epidural steroid injection, but he was still bothered by neck pain and

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headaches. (Doc 37-3, AR 999.) On January 26, 2010, Demer stated that his back and legs

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are in pain: “He feels that the lumbar epidural steroid injections have given him the most

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relief and it does seem to last. We had performed 1 injection back in September and it really

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had not bothered him until just recently. It had not been perfect, but definitely under

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control.” (Doc 37-3, AR 998.) Dr. Weidman conducted a second lumbar epidural steroid

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injection. (Id.) Dr. Weidman noted that Demer seems to have not responded as well to

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injections with regard to his chronic headache and neck and shoulder pain. (Id.) Dr.

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Weidman’s assessment of Demer included: “(1) Low back pain with bilateral radicular

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extremity pain[;] (2) Cervicalgia with mechanical neck pain[;] (3) Myofascial neck and

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shoulder pain[;] (4) Chronic headaches, stress and cervicogenic[; and] (5) Long term drug

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therapy.” (Id.)
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2. Dr. David Weidman

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Based on an examination conducted September 21, 2009, Dr. David Weidman,

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Demer’s treating neurologist, noted that “lateral bending of the spine actually better than

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extension, his ability to get into and up from a squat is quite good, he has a strong back, there

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continues to be mild left more than right cervical paraspinal muscle spasm, and excess

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straightening in the lumbar region.” (Doc. 37-2, AR 985.) Dr. Weidman wrote:

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I conveyed to Daniel that the number of medicines he is on
including Pristiq for mental health reasons, makes chronic pain
management from a neurologic standpoint pharamacologically
more constrained, but what I can offer are some holistic
suggestions. I think Daniel should invest some time into 10 or
15 minutes of warm-up on his incliner home [sic] preceding
initial stages of Yoga exercises, to stretch the body entirely. . .
He is also staying active generally as above which is great.

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(Doc. 37-2, AR 986.)

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In an Attending Physician Statement dated February 3, 2010, Dr. Weidman concluded

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that Demer could sit intermittently for four to five hours per day, stand intermittently for one

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to two hours per day, and walk six to seven hours intermittently per day; he could

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occasionally lift up to ten pounds, but no more. (Doc. 37-2, AR 983.) He opined that Demer

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could reach above shoulder level and operate a vehicle, but he could not climb, twist, bend

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and stoop. (Id.) Dr. Weidman noted that Demer could repetitively perform fine finger

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movement and eye/hand movements, but he could not repetitively push and pull. (Id.) He

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commented that Demer’s inability to work was due to multiple factors including “chronic

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pain and depression interacting with each other,” and he did not expect improvement in those

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areas. (Id.)

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3. Dr. Donald Garland

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On February 10, 2010, Dr. Garland, Demer’s treating psychiatrist, provided an

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updated assessment. Dr. Garland determined that Demer suffered from major depression and

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severe chronic pain syndrome. (Doc. 37-2, AR 978.) He stated that Demer’s depressed

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mood caused him to exhibit lower concentration and focus. (Id.) Dr. Garland opined that

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Demer may be able to return to work in August of 2010. (Doc. 37-2, AR 979.)
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4. Dr. Stephen Moore

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Dr. Moore, Demer’s primary care physician, provided MetLife with office notes from

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multiple visits. Dr. Moore began treating Demer in May of 2005. (Doc 37-2, AR 925.) On

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July 14, 2009, Dr. Moore noted: “The patient and I discussed the MRI findings, and I

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suggested that his symptoms are probably related to muscular scar or spasm causing radicular

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symptoms of the peripheral nerves distal to the spinal canal. We discussed the need for

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massage, stretching, physical therapy, and heat.” (DSOF ¶ 34; PRDSOF ¶ 34.) Two weeks

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later, on July 28, 2009, Dr. Moore described Demer as “doing fairly well” and noted that

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Demer “is on medical disability leave for one year, but would like to consider getting into

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teaching.” (DSOF ¶ 35; PRDSOF ¶ 35.) On September 18, 2009, Dr. Moore stated, “I

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believe these headaches are part of his depression and stress response, probably be [sic]

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muscle contraction. There is no evidence they’re migraine, nor does he have any evidence

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of intracranial pathology.” (Doc. 37-2, AR 932.) Dr. Moore also noted that Demer “is

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attempting to return to school, as he has been laid off from work.” (Id.)

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On March 22, 2010, Dr. Moore examined Demer and prepared an Attending Physician

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Statement. Dr. Moore noted that Demer had diffuse Degenerative Disc Disease (“DDD”)

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of cervical, thoracic and lumbar spine, severe spinal stenosis and a herniated disc at L3-4.

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(Doc 37-2, AR 925.) Dr. Moore stated that Demer could continuously sit for one hour per

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day, stand continuously for less than one hour per day, and walk continuously for less than

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one hour per day; he could frequently lift up to ten pounds, occasionally lift up to fifty

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pounds, but never lift more than fifty pounds. (Doc. 37-2, AR 926.) He opined that Demer

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could reach above shoulder level, operate a vehicle, twist, bend and stoop, but he could not

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climb. (Id.) Dr. Moore noted that Demer could repetitively perform fine finger movement,

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eye/hand movements, and push and pull movements. (Id.) He commented that Demer could

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work zero hours per day because “chronic pain prevents sitting or standing longer than 30

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min[utes] without moving. [Patient] has cognitive limitations [due to] pain as well as

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analgesics.” (Id.) Dr. Moore stated that it was unknown whether Demer’s condition would

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improve in any area. (Id.) In each visit, Dr. Moore described Demer as “alert, oriented, and

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[an] appropriately responsive man, in NAD [no acute distress].” (Doc. 37-2, AR 928- 934.)

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5. Dr. Robert C. Osborne

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Demer was referred by Dr. Garland to Dr. Osborne in February of 2010. (Doc. 37-2,

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AR 922.) Dr. Osborne’s office notes from February 23, 2010 state that Demer was

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prescribed “Flexorol and Tramadol[;] Morphine (only a few tablets per month).” (Doc. 37-2,

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AR 922.) A urine test revealed marijuana and benzodiazepines, which Demer stated he used

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for pain relief.

(Doc. 37-2, AR 923.)

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Based on an examination of Demer conducted May 11, 2010, Dr. Osborne submitted

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to MetLife an Attending Physician Statement (Doc. 37-2, AR 915-17) in which Dr. Osborne

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concluded that Demer could sit intermittently for one hour per day; he could walk and stand

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intermittently for less than one hour per day; he could never lift any weight up to ten pounds;

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he could not reach above shoulder level, operate a vehicle, twist, bend, stoop, and climb.

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(Doc. 37-2, AR 916.) Dr. Osborne opined that Demer had a “total disability.” (Id.) Dr.

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Osborne diagnosed Demer with severe DDD and T 8 compression fracture with symptoms

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of chronic intractable pain. (Doc. 37-2, AR 915.) On June 1, 2010, Dr. Osborne wrote a

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letter to MetLife, stating “[i]t is my opinion that Mr. Demer has significant medical and

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psychiatric problems and is absolutely unable to work at the present time and the future. I

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needed to clarify this issue for all future communications with your company.” (Doc. 37-1,

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AR 890.)

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E.

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MetLife requests Independent Physician Consultant (“IPC”) Review from Dr.
Elyssa Del Valle

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On June 21, 2010, MetLife forwarded the medical information provided by Demer to

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Dr. Elyssa Del Valle, Board Certified in Internal Medicine, for her review and assessment

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of Demer’s functional limitations beyond June 18, 2010. (DSOF ¶ 45; PRDSOF ¶ 45.) Dr.

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Del Valle made the following findings:

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The medical information does support functional limitations
beyond 6/18/10 due to severe degenerative disc disease,
degenerative vertebral disease with numerous levels of the
cervical, thoracic, and lumbar spine associated with neural
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foraminal narrowing as well as spinal stenosis. The condition
is associated with chronic pain necessitating narcotic analgesics
despite trigger point injections, cervical and lumbar epidural
injections and physical therapy. He has had intervals in which
his pain was lessened by these interventions but they were short
lived. Since July 2008, the claimant’s chronic spinal condition
with paravertebral muscle spasm has progressed and would
reasonably impact functionality.
There is some inconsistency between the APS [Attending
Physician Statement] of Dr. Osborne and Dr. Moore. Dr.
Osborne is less familiar with the claimant as the initial
encounter was on 2/23/10. . . . The physical capacity noted by
Dr. Moore and Dr. Osborne indicate that he can stand, walk and
sit no more than an hour each in an 8 hour day. There is no
evidence of a level of impairment to this extreme. This would
indicate that the claimant is bedridden for more than 20 hours a
day. . . .
The APS by the neurologist, Dr. David Weidman is most clearly
supported by the medical information in the file. . . . I concur
with the restrictions/limitations noted in Dr. Weidman’s APS.
Although it was dated 4/20/09, there are no clinical
data/findings to indicate any change in his overall condition. I
concur that the claimant must be restricted from any static
positions longer than 30 minutes due to exacerbation of his pain
syndrome. It will be important for him to be able to alter
positions as often as needed as well as be able to stretch every
hour as needed. I do not opine he can walk 7 hours a day, but
closer to 3-4 hours intermittently in an 8 hour day. He would
need to avoid walking down hill as this would extend his back
and exacerbate symptoms related to spinal stenosis. He should
avoid any prolonged periods of sitting, standing or walking
more than 30 minutes.
The medical indicates that his overall physical status is impacted
by his skeletal disease as well as mechanical regarding muscular
system. The claimant’s mental health issues are likely
exacerbated by his physical condition as well.
The restrictions and limitations noted above would be
permanent as the claimant has likely reached maximal medical
improvement. The goal of treatment will be to maintain his
current function.

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(Doc. 37-1, AR 884-85). Dr. Del Valle also referenced Dr. David Weidman’s findings from

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an EMG of the upper extremities conducted on July 21, 2009: “The study was normal

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without evidence of upper cervical radiculopathy on the left. There was no EMG submitted

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of the lower extremities or reference to one.” (Doc. 37-1, AR 883.)

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F.

MetLife provides Dr. Del Valle’s Report to Demer’s Treating Physicians for
Comment

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MetLife sent Dr. Del Valle’s IPC Report to Plaintiff’s treating physicians for their

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review and comment. Dr. Osborne submitted a letter on August 24, 2010 which stated, “I

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have completed most of my examinations. I have tried to compare them with previous x-rays

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and MRIs. I am perplexed by the conclusions reached by Dr. Balle [sic] considering the

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progressive degenerative changes elucidated by both of the previous x-rays and MRIs as well

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as the current ones.” (Doc. 37-1, AR 829.) Dr. Osborne commented that he has “often

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wondered how one comes up with these calculations such as ‘walk five hours, work seven

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hours’ . . . Perhaps a functional capacity evaluation would be helpful in this case?” (Doc. 37-

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1, AR 830.) Dr. Osborne concluded, “I can only reiterate that my clinical practice validates

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the significant limitations that I assigned to this gentleman.” (Id.)

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On August 25, 2010, Demer’s attorney sent MetLife a test study performed by Dr.

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Osborne. (DSOF ¶¶ 54-55; PRDSOF ¶¶ 54-55.) After diagnostic evaluation of Demer, Dr.

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Osborne concluded: the Somato Sensory Evoked Potentials (“SSEP”) indicated “a

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prolongation from the Posterior Tibialis Nerve to the Cerebral Cortex. This blockage is at

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the cervical spine level and consistent with other diagnostic studies.” (Doc. 39-4, AR 810.)

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MetLife forwarded the new diagnostic studies to Dr. Del Valle for her review. (DSOF

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¶ 57; PRDSOF ¶ 57.) On August 31, 2010, after considering Dr. Osborne’s supplemental

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examinations, Dr. Del Valle provided an Addendum to her review. (Doc. 39-4, AR 812.)

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Dr. Del Valle found that the “MRI of C spine dated 7/16/10 notes ‘no significant change

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compared to 6/22/09.’ The study of the 6/22/09 MRI was noted in my previous IPC review.

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The only changes noted may be the development of mild neural foraminal narrowing at C6-7.

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It was noted previously in my review that he has significant DDD with severe changes at C6-

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7. The other levels noted ‘this is similar to prior exam.’” (Id.) Dr. Del Valle explained:

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The additional information indicates continued significant DDD
of the cervical and lumbar spine which was noted in my
previous review. The new cervical MRI performed after my
6/21/10 review demonstrates some minor progression, however
the radiologist noted as “1) no significant change compared to
6/22/09". The SSPE study was helpful to determine presence of
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radioculopathy, however this was an [sic] expected given the
findings on lumbar MRI from August 2008. SSPE is however
limited as it cannot determine etiology or determine treatment.
It cannot determine progression as there are no previous studies
to compare. Additionally, it cannot be used to determine his
clinical functionality. It is unknown why he has not had another
evaluation with MRI of the lumbar spine over the past 2 years.
It may be due to the fact he has done well with the epidural
injections. If he was deemed incapable of walking more than an
hour per Dr. Osborne’s APS, it would seem to warrant
neurosurgical intervention or at least evaluation by neurosurgery
for possible decompression. Again, there is no study provided
that indicates any particular change in his lumbar spine
condition since August 2008. I do opine that the SSPE does
indicate ongoing nerve compression which warrants additional
evaluation as to direct optimal care.
As Dr. Osborne commented, it is unknown what his functional
capacity is regarding how much he can walk, stand and sit as
there has been no functional capacity exam performed. Despite
this, I do concur that the claimant is functionally impacted as
noted in my previous review. I still contend it is reasonable for
the claimant to be capable of using his hands, fingers without
limitations. This is supported by normal upper extremity EMGs
on 7/21/09 as well as no evidence of atrophy or loss of muscle
tone of the upper extremities, hands and fingers. Thorough
physical exam in February 2010 by Dr. Osborne noted normal
motor strength of his extremities. I continue to opine he could
be capable of sit/stand and walk with no static positions of more
than 30 minutes. . . . I do opine he is unable to walk, stand for
any prolonged periods due to severe Lumbar DDD. He was able
to perform his job duties at the time the MRI was performed on
8/26/08. There is no documentation to indicate any progression
in his lumbar disease that would preclude his ability to walk and
stand with accommodations to change positions as needed. . . .
As for the diagnosis of migraines, this condition would impact
his ability to work during an acute migraine attack. . . . [T]here
is no clinical data/finding to indicate continual functional
impairment beyond 6/18/10 due to migraines. . . .
Summary of reasonable R/Ls [Restrictions/Limitations] are as
follows based on the medical received: . . . I would alter my
previous opinion regarding walking/standing from Dr.
Weidman’s opinion to walk 2 and stand 2 in an 8 hour work
day. He should be capable of sitting 4-6 hours per day as long
as he has proper ergonomics at work desk and can change
positions as needed for comfort. . . . He has earned teaching
credentials this past spring indicating his goals include activities
consistent with the above R/Ls. He should be encouraged rather
than restricted from activities of ADLs [Activities of Daily
Living]. These restrictions/limitations would meet the level to
perform ADLs and work duties with the above accommodations.

28
12

1

(Doc. 39-4, AR 813-15.)

2

G.

MetLife Denies Demer Benefits Under “Any Occupation” Definition of Disability

3

Utilizing the findings of Dr. Del Valle, MetLife conducted an Employment

4

Assessment and Labor Market Analysis (“LMA”). (Doc. 39-4, AR 785-77.) The analysis

5

concluded:

6
7
8
9
10
11

Mr. Demer has transferable skills for other occupations as based
on his training, education, and experience. He has the ability to
work at the sedentary to light level of physical exertion with the
restrictions and limitations as stated above in the MEDICAL
HISTORY section. An Employment Assessment and LMA
were performed which identified four occupations for which Mr.
Demer is qualified and which are found to exist in his
geographical area. Additionally, a search using Indeed.com
indicated job openings for the above identified occupations.
(Doc 39-4, AR 787.)

12

On October 1, 2010, MetLife sent Demer a seven page letter detailing MetLife’s

13

review of his LTD benefits claim and supporting medical information. (Doc 39-4, AR 776-

14

82.) Among other things, MetLife found:

15
16
17
18
19
20
21
22
23
24
25
26
27

The medical information on file does support functional
limitations due to severe degenerative disc disease, degenerative
vertebral disease with numerous levels of the cervical, thoracic
and lumbar spine. The chronic pain associated with the
conditions necessitates narcotic analgesics despite trigger point
injections, cervical and lumbar injections and physical therapy.
The restrictions and limitations provided by Dr. Osborne and Dr.
Moore are severe and would indicate that you are bedridden 20
hours a day. Medically supported restrictions were determined
as follows by an independent physician: Change position every
30 minutes, walk 3-4 hours intermittently in an 8 hour day,
avoid walking downhill, avoid prolonged periods of sitting,
standing or walking for more than 30 minutes. . . .
In summary, the medically supported restrictions and limitations
per a[n] Independent Physician Reviewer are as follows:
No lifting more than 25 pounds and no frequent lifting more
than 10 pounds. No frequent overhead work, limited climbing,
twisting and stooping. No prolonged sitting or any static
positions more than 30 minutes. No prolonged walking or
standing for more than 30 minutes. Sitting 4-6 hours per 8 hour
day with proper ergonomics and the ability to change position
as needed. . . .

28
13

1

Based on this information, you should be able to perform at the
sedentary to light level of physical exertion as defined by the
U.S. Department of Labor. . . .

2
3

7

The results of our employment analysis support the vocational
conclusion that suitable vocational alternatives potentially exist
in reasonable numbers in your local economy, and these
occupations will provide earnings at the gainful employment
level. According to your LTD plan, gainful employment is
defined as occupations that you are reasonably qualified based
on your education, training, experience, and functional ability,
and provides gainful wages of $4,240.48 per month or $24.46
hourly.

8

(Doc. 39-4, AR 778-81.) MetLife thus determined that Demer was not disabled within the

9

meaning of the Plan and terminated his benefits in October 2010. (Doc. 39-4, AR 781-82.)

4
5
6

10

H.

Demer’s Appeal of MetLife’s Termination of Benefits

11

On March 28, 2011, Demer filed an appeal with MetLife. (DSOF ¶ 68; PRDSOF ¶

12

68.) The appeal made no mention of Demer’s depression, but attempted to rebut Dr. Del

13

Valle’s medical opinion with opinions from Dr. Osborne. (Id.) In the appeal, Demer argued

14

that MetLife failed to consider the effect of his medications on his job performance. (DSOF

15

¶ 71; PRDSOF ¶ 71.)

16

Dr. Osborne submitted to MetLife a Review and Criticism of the MetLife

17

determination of October 1, 2010 and the IPC review by Dr. Del Valle. (Doc 39-3, AR 720-

18

23.) Dr. Osborne asserted that a comparison of the MRIs of 6-22-09 and 7-16-10

19

demonstrated that Demer’s disease had progressed. (Doc. 39-3, AR 721.) He also explained

20

that the SSPE of the Posterior Tibial Nerve was ordered “to eliminate foraminal narrowing

21

L5 and review the spinal nerve conduction from a different branch of the sciatic nerve.” (Id.)

22

The results of the SSPE “obviate[d] the previous L5 (Extensor Digitorum Brevus)

23

consideration as the sole nerve deficit.” (Id.) Dr. Osborne stated that “the overall picture is

24

one of a gentleman with severe spinal deterioration at all components of the spine as well as

25

neurophysiological evidence of a delayed conduction (spinal cord problem) of the bilateral

26

Posterior Tibial Nerves to the cerebral cortex as well as a separate left L5 nerve root legion.”

27

(Doc. 39-3, AR 721-22.) To treat Demer’s condition, chronic narcotic medication had been

28

prescribed, which Dr. Osborne opined has side effects that “limit the ability to complete
14

1

productive mental functions.” (Doc. 39-3, AR 722.) Dr. Osborne thus concluded, “It is also

2

my consideration that Mr. Demer will never again be able to complete a gainful employment

3

or occupation.” (Id.)

4

MetLife referred Demer’s medical information, including Dr. Osborne’s comments

5

regarding the effects of [Demer’s] pain medications, to Medical Consultants Network

6

(“MCN”) to determine whether “there was clinical evidence to support restrictions and

7

limitations and/or side effects resulting from the medications taken” by Demer. (DSOF ¶ 74;

8

PRDSOF ¶ 74.) MCN contracted with Marcus Goldman, M.D., Board Certified in

9

Psychiatry, who prepared a written opinion based on a “page-by-page review of [the] 400-

10

page record.” (Doc. 39-2, AR 664-65.) In response to the question, “[d]oes the medical

11

information support (psychiatric) functional limitations beyond 10/29/2010,” Dr. Goldman

12

answered that “claimant is not seen with a frequency or intensity that would be deemed

13

appropriate for the level of afunctionality reported by the claimant’s providers.” (Doc. 39-2,

14

AR 668.) Dr. Goldman explained:

15

18

[t]he claimant is not objectively noted to be obtruded, lethargic,
or with altered sensorium or intoxication. At no time was there
any data to support significant cognitive dysfunction in any
quantified or otherwise objective fashion. While Dr. Osborne
suggested that the claimant is using marijuana, there [is] no data
detailing the specifics of the claimant’s use. There is no
mention of chemical dependency assessment, for example.

19

(Id.) He also noted that “[g]iven the lack of recent data and the paucity of any compelling

20

objective findings, as well as the lack of serial mental status examinations, this reviewer

21

would be unable to establish the presence of an impairing mental condition.” (Id.) MetLife

22

also asked Dr. Goldman to opine whether “there is clinical evidence to support restrictions

23

and limitations and/or side effects resulting from the medications taken by this claimant, from

24

beyond 10/29/2010.” (Doc. 39-2, AR 668.) Dr. Goldman responded: “Beyond October 29,

25

2010, there clearly are no objective or other compelling or convincing data to establish

26

functional impairment as a result of Mr. Demer’s psychotropic medications.” (Id.)

16
17

27

MetLife also referred Demer’s medical file and supporting documentation for LTD

28

benefits to Dennis S. Gordan, M.D., Board Certified in Physical Medicine and Rehabilitation,
15

1

Board Certified in Internal Medicine. Dr. Gordan prepared an eighteen-page review; twelve

2

pages were devoted to summarizing the treating physicians’ findings and Demer’s

3

medications. (Doc. 39-2, AR 645-63.)

4

Dr. Gordan attempted to speak with Demer’s treating physicians, including Dr.

5

Osborne. (Doc. 39-2, AR 661-62.) After multiple attempts to contact Dr. Osborne, Dr.

6

Gordan was informed by a woman named Beth that Dr. Osborne stated that he did not wish

7

to speak with him and planned to “let the affair go to trial.” (Doc. 39-2, AR 661.) Dr.

8

Gordan informed Beth that it was his opinion that Demer “did not have migraine headaches,

9

and that the evoked potentials and electrodiagnostic testing were not indicative of either

10

myelopathy or radiculopathy, so that if Dr. Osborne wanted to call back to discuss this, that

11

would be fine.” (Id.)

12

On April 13, 2011, Dr. Gordan spoke with Dr. David Weidman, who informed Dr.

13

Gordan that the last time he had seen Demer was in January 2010. (Doc. 39-2, AR 662.) Dr.

14

Weidman stated that “he had not ordered somatosensory evoked potentials for quite some

15

time, since he found that they did not add anything beyond other testing. . . . He had not ever

16

thought that the claimant had migraine headaches.” (Id.)

17

Also on April 13, 2011, Dr. Gordan spoke with a supervisor named Dave from the

18

neurophysiology lab where the somatosensory evoked potentials had been done. (Doc. 39-

19

2, AR 663.) “Dave indicated that, although not on the report, nerve conduction test had been

20

done when the evoked potentials were performed, and the conduction velocities were

21

decreased. He also said that the delay in the P40 wave could be from peripheral neuropathy,

22

radiculopathy, or some cord lesion.” (Id.)

23
24
25
26
27
28

On April 15, 2011, Dr. Gordan spoke with Dr. Moore. (Doc. 39-2, AR 662.) Dr.
Gordan’s note indicate that Dr. Moore related:
[H]is nurse practitioner had seen the claimant twice and he had
seen him once (1/24/11) during the period in question. Dr.
Foote, the neurologist who had conducted the EMG, had seen
the claimant on 2/21/11, at which point Dr. Foote wrote that the
claimant appeared to have muscle contraction headaches. Dr.
Foote also wrote that the claimant had demonstrated an Allman
neuropathy on EMG on one occassion and had a question of
16

1

lumbar radiculopathy on another EMG. The claimant had also
been seen by Dr. Baron, an orthopedic surgeon, on 10/29/10.
Dr. Baron thought the claimant had cervical and lumbar
degenerative joint disease and radiculopathy, and spinal stenosis
in the neck at least, for which he thought lumbar decompression
had a decent chance of yielding improvement, but cervical
surgical prognosis was guarded. Dr. Moore said that when the
claimant was seen in January, he had difficulty walking into the
office and was taken in by wheelchair to the examining room.
As far as he knew, the claimant could do a very sedentary job,
but he felt that he would have to see him again to say that
definitely. He recognized that depression and chronic pain
syndrome were playing roles in the claimant’s total
symptomatology.

2
3
4
5
6
7
8
9

(Id.)

10

MetLife asked Dr. Gordan to answer the following question after a review of Demer’s

11

medical file and interviews with Demer’s treating physicians: “Do the physical conditions

12

alone, and or combined result in continuous physical functional impairment, and restrictions

13

and limitations (temporary or permanent), specific to the period beyond 10/29/10, as

14

supported by clinical findings?” (Doc. 39-2, AR 650.) Dr. Gordan answered:

15
16
17
18
19
20
21
22
23
24
25
26
27
28

The claimant has headaches and multiple areas of pain, with
documented anatomical cervical spinal stenosis, degenerative
disc disease, and degenerative facet disease of the spine, as well
as degenerative arthritis of the left hip, status post some type of
hip procedure. There has been, however, no evidence of
sphincter dysfunction, long tract signs, or intrinsic cord signal
abnormalities to suggest that spinal stenosis had yielded cervical
myelopathy. Dr. Osborne’s interpretation of the evoked
potential and electrodiagnostic testing is incorrect. The
prolongation of the P40 wave, taken alone, says only that there
is delay in conduction somewhere between the stimulation site
in the leg and the brain. Given the slowed peripheral nerve
conduction reported to me by the testing lab, it is even less clear
what caused the prolongation. If the claimant had an L5
radiculopathy, as Dr. Osborne asserts, there would be yet
another reason for prolongation, but the lower limb
electrodiagnostic testing does not even claim to clearly
demonstrate a radiculopathy, conceding that the fibrillations in
the extensor digitorum brevis could be from neuropathy or a
root lesion. Single muscle abnormalities, however, should never
be attributed to radiculopathy [especially, but also to
neuropathy], and this is doubly so in the extensor digitorum
brevis, which is notoriously frequently damaged locally by
trauma. . . .
The claimant does have headaches, but as everyone except Dr.
Osborne has said, these appear to be muscle contraction
headaches. Dr. Osborne’s statement about overwhelming
17

1

migraines has no basis. His assertion that the trigeminal nucleus
was the etiology for cervicogenic headache was at odds with the
neurologist’s assessment and appears specious. . . .

2
3

9

In summary, the claimant likely has a modicum of discomfort
from muscle contraction headache, neck and back pain related
to spinal degeneration, and referred pain down the limbs from
those degenerative changes. His own assessments of his
capabilities would be adversely affected by his depression, but
he would appear to be capable of sitting for an hour at a time,
with short breaks for stretching, and up to 7 hours a day,
standing and walking for 15 minutes at a time and up to 2 hours
a day, lifting up to 10 pounds frequently, 20 pounds
occasionally and 35 pounds rarely; occasionally twisting,
bending, stooping, and reaching above shoulder level, driving,
and doing repetitive movements with either hand. He could
occasionally climb stairs only.

10

(Doc. 39-2, AR 650-51.) MetLife also asked the doctor to opine “whether there is clinical

11

evidence to support restrictions and limitations and/or side effects resulting from the

12

medications taken by this claimant, from beyond 10/29/2010.” (Doc. 39-2, AR 651.) Dr.

13

Gordan answered, “[t]here is no specific information about medications taken or effects from

14

them during the period in question. Although Dr. Osborne asserted that the claimant’s

15

needed narcotic medication caused cognitive side effects, there was never any evidence of

16

that.” (Id.)

4
5
6
7
8

17

On May 6, 2011, after reviewing “Mr. Demer’s entire claim,” Metlife sent Demer a

18

letter affirming its decision to terminate Demerr’s benefits beyond October 29, 2010. (Doc.

19

39-1, AR 514-20.) MetLife noted among its findings, that “[a] cervical spine magnetic

20

resonance imaging (MRI) done [sic] completed on July 16, 2010 showed no significant

21

changes compared with the June 22, 2009 cervical spine MRI.” (Doc. 39-1, AR 515.) The

22

letter concluded:

23
24
25
26
27
28

Based on our review of the information provided, we have
determined there was insufficient information to support any
restrictions or limitations that would deem Mr. Demer unable to
work in any gainful occupation for which he is qualified taking
into account his training, education and experience. The medical
information in totality does not support any physical or
psychiatric restrictions or limitations that would have precluded
Mr. Demer from performing any occupation beyond October 29,
2010, and therefore, the previous decision to terminate LTD
benefits for the time period in question was appropriate and
remains in effect.
18

1
2

(Doc. 39-1, AR 519.)2
DISCUSSION

3
4

The purpose of ERISA is “to protect ... the interests of participants in employee

5

benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants

6

and beneficiaries of financial and other information with respect thereto, by establishing

7

standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans,

8

and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.”

9

29 U.S.C. § 1001(b). 29 U.S.C. § 1132(a)(1)(B) provides that a participant in an employee

10

benefit plan may bring a civil action “to recover benefits due to him under the terms of his

11

plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits

12

under the terms of the plan.” Demer initiated this action pursuant to ERISA seeking

13

disability benefits under IBM’s long-term disability plan.
STANDARD OF REVIEW

14
15

The district court reviews a denial of plan benefits “under a de novo standard” unless

16

the plan provides to the contrary. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

17

(1989). Where the plan provides to the contrary by granting the administrator or fiduciary

18

discretionary authority to determine eligibility for benefits, a deferential standard of review

19

is appropriate. Id. Deference means that a plan administrator’s interpretation of the plan

20

“will not be disturbed if reasonable.” Conkright v. Frommert, 559 U.S. 506, 521-22 (2010).

21

Under the reasonableness standard, a plan administrator abuses its discretion when its

22

determination is “(1) illogical, (2) implausible, or (3) without support in inferences that may

23

be drawn from the facts in the record.” Salomaa v. Honda Long Term Disability Plan, 642

24

The Court will not consider the additional medical documentation Demer
submitted to MetLife after its final decision because the documentation was not
provided to or considered by MetLife prior to MetLife’s final denial of Demer’s LTD
26 claim. See Abatie v. Alta Health & Life Ins Co., 458 F.3d 955, 970 (9th Cir. 2006)
(“in general, a district court may review only the administrative record when
27 considering whether the plan administrator abused its discretion. . .”); see also
Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 632 n.4 (9th Cir. 2009)
28 (“In the ERISA context, the ‘administrative record’ consists of ‘the papers the insurer
had when it denied the claim.’”) (citation omitted).
2

25

19

1

F.3d 666, 675-76 (9th Cir. 2011). To find an abuse of discretion, the court must be left with

2

a “definite and firm conviction that a mistake has been committed.” Id. at 676. Where the

3

plan administrator both pays benefits and determines eligibility for those benefits, the abuse

4

of discretion standard still applies. See Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105,

5

115 (2008). A plan administrator’s conflict of interest is a factor that the Court must weigh

6

in determining whether the plan administrator’s denial of benefits was reasonable. Id. at 117.

7

In this case, the Plan provides MetLife discretionary authority to determine eligibility

8

for LTD benefits, and MetLife’s “discretionary authority shall be given full force and effect,

9

unless it can be shown that the interpretation or determination was arbitrary and capricious.”

10

(Doc. 36-3, AR 116.) Thus, the Court will review MetLife’s denial of benefits for abuse of

11

discretion.3 Under the abuse of discretion standard, the Court will analyze the effect, if any,

12

MetLife’s conflict of interest had on its determination to deny Demer LTD benefits.

13

The Court’s review is generally limited to the Administrative Record. See Abatie v.

14

Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir. 2006). The Court, however, may

15

consider evidence outside the Administrative Record as it pertains to the conflict of interest

16

factor. Id.

17

ANALYSIS

18

Plaintiff challenges MetLife’s denial of benefits on two grounds: (1) MetLife operated

19

under a conflict of interest which caused it to unreasonably deny Plaintiff’s claim; and (2)

20

MetLife’s decision was arbitrary and not supported by the evidence in the record. After

21

considering MetLife’s structural conflict of interest and the Administrative Record, the Court

22

finds that MetLife’s denial of LTD benefits was reasonable.

23

In determining the scope of MetLife’s conflict of interest, the Court examines several

24

factors including history of biased claims administration, evidence of procedural

25
26

3

Where the decision to grant or deny benefits is reviewed for abuse of discretion, a
motion for summary judgment is merely the conduit to bring the legal question before the
27 district court and the usual tests of summary judgment, such as whether a genuine dispute
of material fact exists, do not apply. See Bendixen v. Standard Ins. Co., 185 F.3d 939,
28 942 (9th Cir. 1999).
20

1

unreasonableness, emphasis on medical reports favoring denial coupled with de-emphasis

2

of reports suggesting a contrary conclusion, failure to provide independent vocational and

3

medical experts with all of the relevant evidence, and the ultimate adequacy of the record’s

4

support for the agency’s factual conclusion. See Glenn, 554 U.S. at 118. In the present case,

5

Demer contends that MetLife’s conflict of interest is demonstrated by its history of claims

6

administration, its emphasis on medical reports favoring denial coupled with de-emphasis

7

of reports suggesting a contrary conclusion, and the ultimate lack of support for the agency’s

8

factual conclusion. Because the second and third of these factors necessitate a review of

9

MetLife’s decision on its merits, the Court will consider them in the context of Plaintiff’s

10

claim that MetLife’s decision was arbitrary and not supported by the evidence in the record.

11

A.

12

MetLife’s alleged history of claims administration does not demonstrate that
MetLife operated under an impermissible conflict of interest in this case

13

Demer contends that MetLife has a history of biased claims administration and

14

therefore the Court should conclude that MetLife operated under an impermissible conflict

15

of interest in denying Demer’s claim. In support of this argument, Plaintiff offers citation

16

to cases holding that MetLife acted in a capricious and arbitrary manner. The Court finds

17

such citation minimally probative to substantiate a claim that the administrator has a history

18

of biased claim determinations. See Watts v. Metropolitan Life Ins. Co., 2011 WL 1585000,

19

*13 (S.D. Cal. April 26, 2011) (“a history of biased claims administration is not evidenced

20

by mere citation to specific decisions criticizing claim determinations.”) For the years 2009

21

through 2011, MetLife received a total of 917,203 claims; Plaintiff’s citation to a handful of

22

opinions - not including opinions upholding MetLife’s denial of benefits - fails to convey a

23

history of biased claims handling. Cf Glenn, 554 U.S. at 117 (finding evidence of history of

24

biased claims administration in a law review article summarizing one insurance company’s

25

history).

26

In addition, the Court notes that a plan administrator’s structural conflict of interest

27

“should prove less important (perhaps to the vanishing point) where the administrator has

28

taken active steps to reduce potential bias and to promote accuracy.” Id. at 117. The Court
21

1

finds that MetLife has taken affirmative steps to reduce potential bias and promote accurate

2

claim determinations.4

3

department. (DSOF ¶ 90.) The claims and appeals specialists do not report to, and are

4

geographically separate from, the finance department. (Id.) MetLife’s finance department

5

employees do not make, direct or have any association with claims decisions. (DSOF ¶ 91.)

6

Metlife’s claims and appeals specialists receive no financial benefit or performance

7

recognition based upon either the value or number of claims they deny or terminate. (DSOF

8

¶ 92.) Under the Plan, IBM could determine in any Plan year to self-fund benefits, yet

9

MetLife would still act as claims administrator. (DSOF ¶ 94.) Of the group disability

10

claims received by MetLife, only a small percentage of claims are sent to IPCs or other third-

11

party vendors that retain IPCs to perform independent reviews. (DSOF ¶ 95.) Based on

12

information available for the years 2009 through 2011, MetLife sent 33,248 referrals of

13

claims for group disability benefits for independent medical review, which included not only

14

initial referrals but referrals for addendum opinions. (Id.) Based on information available

15

for the years 2009 through 2011, MetLife received a total of 917,203 claims for group

16

disability benefits; MetLife approved for payment of benefits a total of 750,916 claims, thus

17

denying 176,133 claims. (DSOF ¶ 96.)

MetLife walls off its claims department from its financing

18

Moreover, the Court finds that the Social Security Administration’s (“SSA”)

19

determination supports MetLife’s review of the medical evidence. Demer submitted a

20
21
22
23
24
25
26
27
28

4

Plaintiff objects to DSOF ¶¶ 90-96, contending that the declarations of Gregory
Hafner and Laura Sullivan were not timely disclosed, and therefore should not be
considered. (PRDSOF ¶ 90.) Demer asserts that consideration of these documents will
prejudice him because late disclosure eliminated his opportunity to conduct discovery and
examine the accuracy of these statements. (Id.) Plaintiff’s claim that he did not have an
opportunity to conduct discovery into this matter is specious. As an appeal from an
administrative record, this case is exempt from disclosure requirements. See Fed. R. Civ.
P. 26(a)(1)(B)(i). Nonetheless, in Plaintiff’s initial Rule 26(a)(1) disclosure statement, he
expressed his intent to take Rule 30(b)(6) depositions of MetLife to discover whether
MetLife had procedures in place that could lead to evidence of bias in its claim handling
process. (Doc. 44-1, Exh. B at p. 2.) Plaintiff failed to conduct such discovery. Notably,
the Ninth Circuit has stated that a conflicted administrator “may find it advisable to bring
forth affirmative evidence that any conflict did not influence its decision making
process.” Abatie, 458 F.3d at 969. The Court will therefore take into consideration the
affidavits submitted by MetLife concerning its efforts to ameliorate its structural conflict
of interest.
22

1

disability claim to the SSA. The claim was not decided by a Administrative Law Judge but

2

by “trained staff.” (PRDSOF ¶ 67; DCSPSSOF ¶ 93.) The SSA concluded the following:

3

“While you do experience pain and discomfort due to your physical condition, the medical

4

evidence shows you are able to move about. You are able to walk without assistance and to

5

use your arms and legs in a satisfactory manner. The evidence shows your headaches are

6

controlled with medication.” (DSOF ¶ 67; DCSPSSOF ¶ 93.) Although not a decision by

7

an administrative law judge, the SSA’s findings support the objectivity of MetLife’s review

8

of the medical evidence. Accordingly, the Court concludes that MetLife’s structural conflict

9

of interest did not influence its decision to deny Demer’s claim.

10
11

B.

In denying Demer’s claim, MetLife did not overly emphasize medical reports
favoring denial or reach a conclusion which lacked support in the record

12

Demer claims that MetLife’s decision to deny benefits was arbitrary and capricious

13

because it relied on the biased opinion of Drs. Del Valle, Gordan and Goldman. The Court

14

concludes that these doctors were not influenced by bias and that MetLife properly reviewed

15

the evidence in Demer’s medical file and considered the medical opinions that supported a

16

finding of disabled.5

17

1.

18

Plaintiff contends that Dr. Del Valle agreed with many of the treating physicians

19

diagnoses, but refused to find that Demer was disabled. Plaintiff concludes that this result

20
21

Dr. Del Valle’s opinion

can only be explained by Dr. Del Valle’s desire to please her employer.6 The Court
5

In so concluding, the Court rejects Demer’s implication that medical
professionals retained by MetLife are always biased. The Court notes that MetLife
approved Demer’s claim for LTD benefits under the “own occupation” definition of
23 disabled based on Dr. Gosline’s assessment. Dr. Gosline was an IPC retained by MetLife
similiar to Dr. Del Valle, Dr. Goldman, and Dr. Gordan.
22

24

6

Plaintiff disputes Dr. Del Valle's independence from MetLife. (PSOF ¶ 15.)
Plaintiff notes that during calendar year 2010, Dr. Del Valle prepared 215 reports and 47
addendums for MetLife, and earned $137,403.75. (PSOF ¶ 15.) In 2009, Dr. Del Valle
26 earned $167,640.00. (PSOF ¶ 16.) From January 11th to May 11th of 2011, Dr. Del
Valle earned $52,346.25. (Id.) Defendants rebut Plaintiff's assertion that Dr. Del Valle is
27 biased, noting that Dr. David Weidman considered her IPC report to be a "very fair
assessment." (Doc 38-4, AR 462.) The Court does not consider Dr. David Weidman's
28 statement with respect to the merits of Demer's disability claim, but rather, as evidence to
rebut Plaintiff's contention that Dr. Del Valle operates under a conflict of interest. See
25

23

1

disagrees. Dr. Del Valle found that the medical information supported functional limitations

2

beyond 6/18/10 due to “severe degenerative disc disease, degenerative vertebral disease with

3

numerous levels of the cervical, thoracic, and lumbar spine associated with neural foraminal

4

narrowing as well as spinal stenosis.” Based on this diagnosis, Dr. Del Valle concluded that

5

Dr. David Weidman’s opinion as to Plaintiff’s functional capacity was the opinion best

6

supported by the medical evidence despite the fact that it was dated 4/20/09. Dr. Del Valle

7

also submitted an addendum to her report after reviewing new medical information and

8

objections to her report submitted by Dr. Osborne. She found that the cervical MRI

9

conducted 6/21/10 showed “some minor progression” of Demer’s condition when compared

10

to the 6/22/09 MRI, but not so drastic as to support a finding of disabled within the meaning

11

of the Plan. Dr. Del Valle found that no study provided for her review indicated “any

12

particular change in his lumbar spine condition since August 2008.” Dr. Del Valle concluded

13

that Demer was able to perform his duties at IBM in August of 2008, and his functional

14

capacities had not deteriorated to the extent that he would be physically incapable of working

15

at the time of her review. Dr. Del Valle considered all the treating physicians’s opinions.

16

She did not scan the record and cherry pick evidence that was probative of denying Demer’s

17

disability claim. Moreover, Dr. David Weidman considered Dr. Del Valle’s IPC report to

18

be a “very fair assessment.”

19

2.

20

Plaintiff also asserts that MetLife relied on the biased opinion of Dr. Gordan to deny

21

Demer’s appeal. Specifically, Plaintiff contends that Dr. Gordan failed to diagnose Demer

22

with radiculopathy and acknowledge the side effects of Demer’s medications, which was

Dr. Gordan’s opinion

23
24
25
26
27
28

Abatie, 458 F.3d at 970 ("The district court may, in its discretion, consider evidence
outside the administrative record to decide the nature, extent, and effect on the
decision-making process of any conflict of interest.")
24

1

contrary to the medical evidence.7 The Court finds that Dr. Gordan’s conclusions were not

2

the result of bias.

3

Dr. Gordan did not diagnose Demer with radiculopathy, although it was diagnosed by

4

Dr. Osborne, Dr. Debra Weidman, Dr. Moore, Dr. Baron, and Dr. Del Valle. The Court,

5

however, does not conclude that this demonstrates that Dr. Gordan issued a biased opinion.

6

Dr. Gordan spoke with a supervisor from the neurophysiology lab where the SSPE was

7

conducted and received information that a nerve conduction test had also been done when

8

the evoked potentials were performed which could indicate peripheral neuropathy,

9

radiculopathy, or some cord lesion. Dr. Foote, who conducted the EMG on 2/21/11,

10

determined that Demer had an Allman Neuropathy and stated there was a question of lumbar

11

radiculopathy on another EMG. Dr. David Weidman conducted an EMG on July 21, 2009

12

of Demer’s upper extremities and found that “[t]he study was normal without evidence of

13

upper cervical radiculopathy on the left. There was no EMG submitted of the lower

14

extremities or reference to one.” In sum, Dr. Gordan’s medical opinion differs from several

15

of the treating and reviewing physicians, but the objective medical tests spawned various

16

diagnoses and created room for disagreement. Dr. Gordan attempted to speak with Dr.

17

Osborne concerning his contrary diagnosis but Dr. Osborne declined. Plaintiff’s reviewing

18

physician denied Dr. Gordan an opportunity to potentially revise his diagnosis. Nevertheless,

19

Dr. Gordan did diagnose Demer with DDD, slowed nerve conduction, chronic pain, and

20

headaches. However, similar to Dr. Del Valle, he found that these diagnoses did not render

21

Demer disabled.

22
23
24
25
26
27
28

7

Plaintiff disputes Dr. Gordan's independence from MetLife. (PSOF ¶ 23.) In
calendar years 2009 and 2010, Dr. Gordan earned from MetLife $182,137.50 and
$212,775.00, respectively. From January 11th to May 11th, he earned $61,275.00. (Id.)
Plaintiff also asserts that Dr. Gordan is the same Dr. Gordon from Mohamed v. MetLife,
2012 WL 315868 (S.D.N.Y. decided February 2, 2012). (Doc 29-2, Exh. 8, Affidavit of
Plaintiff's counsel, Barry Kirschner.) Defendants dispute that the doctor in that case is
the same Dr. Dennis Gordan here. Defendants further contend that the affidavit relies on
double hearsay, and therefore must be stricken. The court has read Mohamed, and finds
that regardless of the hearsay issue, Dr. Gordan's determinations in that matter are
minimally probative, if at all, of his opinion in this matter, especially in light of the
volume of work he does for MetLife.
25

1

MetLife also asked Dr. Gordan if there was any “clinical evidence” to support

2

restrictions and limitations resulting from Demer’s medication. Plaintiff cites as evidence

3

of bias Dr. Gordan’s answer: “There is no specific information about medications taken or

4

effects from them during the period in question. Although Dr. Osborne asserted that the

5

claimant’s needed narcotic medication caused cognitive side effects, there was never any

6

evidence of that.” Dr. Gordan detailed Demer’s history of prescribed and non-prescribed

7

medications, which included powerful pain narcotics. He admitted that Demer suffers from

8

multiple areas of pain with documented anatomical cervical stenosis, DDD, delayed nerve

9

conduction, headaches, and arthritis. He did not find specific information to support

10

cognitive side effects from Demer’s medications. Plaintiff asserts that the opinions of Drs.

11

Osborne and Moore and Demer’s written statement undermined Dr. Gordan’s opinion. Dr.

12

Osborne noted that side-effects to be expected from Demer’s medications were narcotic

13

related fatigue and decreased ability to concentrate. (Doc 39-3, AR 722-23.) Dr. Moore

14

stated that Demer had “cognitive limitations,” but he did not explain what the limitations

15

were or the cause. (Doc. 37-2, AR 926.) Demer’s personal statement submitted to MetLife

16

provided that his medications caused him fatigue and affected his concentration. (Doc. 39-3,

17

AR 729.) However, Demer’s treating physicians - Drs. Moore, Debra Weidman, and David

18

Weidman - consistently described him as alert, oriented, and appropriately responsive. Dr.

19

Gordan’s answer was supported by the medical evidence.

20

3.

21

MetLife requested Dr. Goldman review Demer’s mental heath issues, including the

22

side effects of his medication. (Doc. 34, p. 26.) As to Dr. Goldman, Plaintiff contends that

23

he failed to consider the opinions of Drs. Moore and Osborne as to Demer’s cognitive

24

limitations and ignored the statements made by Demer and lay witnesses who observed

25

Demer’s condition worsen. Plaintiff similarly challenges the objectivity of Dr. Goldman’s

26

opinion and MetLife’s reliance upon it. To establish Dr. Goldman’s bias, Plaintiff primarily

27

relies on Dr. Moore’s note that Demer “has cognitive limitations [due to] pain as well as

28

analgesics,” and Dr. Osborne’s letters dated February 14, 2011 and February 17, 2011,

Dr. Goldman’s opinion

26

1

wherein he describes, in general, the side effects expected from the medications Plaintiff had

2

been prescribed.

3

In each of his examinations with Dr. Moore and Dr. Debra Weidman, Demer was

4

described as alert, conversant and oriented x3. Dr. David Weidman and Dr. Moore both

5

noted that Demer wanted to become a teacher.

6

encouraged Demer to seek a more holistic approach to pain relief including yoga. Dr.

7

Goldman found that there were no objective findings that Plaintiff acted “obtruded, lethargic

8

or with altered sensorium or intoxicat[ed]. At no time was there any data to support

9

significant cognitive dysfunction in any quantified or otherwise objective fashion.” Dr.

10

Goldman reviewed the 400 page record, noted the lack of objective evidence, and determined

11

that the evidence provided was insufficient to support a cognitive impairment that would

12

render Demer disabled. It was plaintiff’s burden to provide MetLife with evidence of

13

cognitive dysfunction. See Morales-Alejandro v. Medical Card System, Inc., 486 F.3d 693,

14

700 (1st Cir. 2007) (“A claimant seeking disability benefits bears the burden of providing

15

evidence that he is disabled within the plan’s definition”). The lack of medical evidence to

16

support a cognitive disability is not evidence of Dr. Goldman’s bias.

Dr. David Weidman, in particular,

17

Plaintiff also asserts that his statements as well as lay persons’ observations were not

18

taken into consideration by Dr. Goldman. The Court finds that there is no evidence that

19

affirmatively states whether Dr. Goldman considered the statements.8 However, the Court

20

notes that MetLife denial letter states, “we have reviewed Mr. Demer’s entire claim.” Dr.

21

Goldman also stated he conducted a “page-by-page review of this 400-page record.”

22
23
24
25

8

Plaintiff cites Rekstad v. U.S. Bancorp, 451 F.3d 1114, 1120-21 (10th Cir. 2006),
for the proposition that an administrator acts arbitrarily by dismissing statements made by
26 lay people closely associated with the claimant. In that case, two of claimant’s relatives
filed affidavits detailing claimant’s cognitive and physical impairments. The
27 administrator stated that the affidavits “were not considered in making our
determination.” The court found that the administrator acted in an arbitrary manner by
28 failing to give full and fair consideration to the affidavits. Id. at 1121. Here, MetLife
made no such concession.
27

1

C.

2

The Plan provides that Plaintiff is entitled to LTD benefits if “because of a sickness

3

or injury, [he] cannot perform the important duties of any other gainful occupation for which

4

[he is] reasonably fit by [his] education, training, or experience.” MetLife concluded that

5

Plaintiff did not meet this standard because “the medical information in totality does not

6

support any physical or psychiatric restrictions or limitations that would have precluded Mr.

7

Demer from performing any occupation beyond October 29, 2010. . .” MetLife’s denial of

8

Plaintiff’s LTD benefits is supported by the record and therefore constitutes a reasonable

9

determination.

MetLife’s decision was supported by the record

10

Dr. Debra Weidman examined Demer on five occasions from August 25, 2009 to

11

January 26, 2010, and in each physical exam, she noted that he was “alert, conversant and

12

oriented x3.” Demer received his first lumbar epidural steroid injection from Dr. Debra

13

Weidman on September 15, 2009 and stated that his lower back and leg pain “definitely

14

responded” to the epidural steroid injection. On January 26, 2010, Dr. Debra Weidman

15

conducted a second lumbar epidural steroid injection, and she noted that “[w]e had

16

performed 1 injection back in September and it really had not bothered him until just

17

recently. It had not been perfect, but definitely under control.”

18

Dr. David Weidman examined Plaintiff on September 21, 2009 and noted that he

19

could get into and up from a squat quite well and he had a strong back. Dr. David Weidman

20

recommended that Plaintiff practice yoga exercises and noted that he “was staying active .

21

. . which is great.” In an Attending Physician Statement, Dr. David Weidman opined that

22

Plaintiff could sit intermittently for four to five hours per day, stand intermittently for one

23

to two hours per day, and walk six to seven hours intermittently per day; he could

24

occasionally lift up to ten pounds, but no more; he could reach above shoulder level and

25

operate a vehicle, but he could not climb, twist, bend and stoop; and he could repetitively

26

perform fine finger movement and eye/hand movements, but he could not repetitively push

27

and pull. In addition, Plaintiff’s treating psychiatrist, Dr. Garland, opined that Demer could

28

possibly return to work in August of 2010.
28

1

The findings most favorable to Plaintiff’s disability claim were made by Dr. Moore

2

and Dr. Osborne. Dr. Moore, however, noted in each visit that Plaintiff was “alert, oriented,

3

and [an] appropriately responsive man, in NAD [no acute distress].” Dr. Moore also noted

4

that Plaintiff wanted to start teaching. On March 22, 2010, Dr. Moore examined Demer and

5

prepared an Attending Physician Statement, concluding that Plaintiff could work zero hours

6

per day because “chronic pain prevents sitting or standing longer than 30 min[utes] without

7

moving. [Patient] has cognitive limitations [due to] pain as well as analgesics.” Dr. Osborne

8

found that Plaintiff could never lift any weight up to ten pounds; he could not reach above

9

shoulder level, operate a vehicle, twist, bend or stoop. Thus, Dr. Osborne concluded that

10

Plaintiff had a “total disability.” Dr. Osborne’s opinion that Plaintiff could not operate a

11

vehicle was directly contradicted by Plaintiff’s conversations with MetLife on January 14,

12

2010 and May 18, 2010, where he stated that he had been driving a vehicle. Further, while

13

receiving disability payments, Demer told a MetLife claims representative that “he was just

14

completing online courses.” Thus, he worked and focused on course material while he was

15

disabled.9

16

Dr. Del Valle reviewed Demer’s medical record. She noted inconsistencies between

17

the opinions of Drs. Osborne and Moore, and rejected both of their assessments of Plaintiff’s

18

functionality, stating, “[t]here is no evidence of a level of impairment to this extreme. This

19
20
21
22
23
24
25
26
27
28

9

In addition, Defendants assert that Dr. Osborne is not an impartial medical
examiner as evidenced by his website, which refers to “greedy lawyers, malicious
insurance companies, potential financial ruin, total chaos and corruption within the legal
system.” (DSOF ¶ 97; Doc 35-1, Exhibit C.) Demer objects to DSOF ¶ 97, contending
that this information was not timely disclosed, and therefore should not be considered.
(PRDSOF ¶ 97.) As an appeal from an administrative record, this case is exempt from
disclosure requirements. See Fed. R. Civ. P. 26(a)(1)(B)(i). Plaintiff also asserts that the
information is unfairly presented and does an injustice to Dr. Osborne. (PRDSOF ¶ 97.)
This information was provided on a website that was endorsed by Dr. Osborne and
created to raise funds for his legal defense in an unrelated matter. Plaintiff does not
challenge the authenticity of the website. Because the accuracy and reliability of the
website can be readily determined, the Court will take judicial notice of its contents. See
Fed. R. Evid. 201(b)(2); see also Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965-66
(C.D. Cal. 2005) (taking judicial notice of a page from the website of the American
Academy of Allergy Asthma & Immunology for the purpose of evaluating a "conflict of
interest" in an ERISA disability case). However, Dr. Osborne’s alleged bias is not
dispositive of this case.
29

1

would indicate that the claimant is bedridden for more than 20 hours a day.” Dr. Del Valle

2

found that the medical evidence supported Dr. David Weidman’s functionality findings. She

3

opined that Plaintiff could work under appropriate restrictions and limitations. Dr. Del

4

Valle’s opinion changed only slightly after reviewing Dr. Osborne’s new findings because

5

the 7/16/10 MRI did not show a significant change compared to the 6/22/09 MRI.

6

Plaintiff incorrectly contends that Dr. Del Valle relied on Dr. David Weidman’s

7

“stale” findings.10

8

determination that Plaintiff was completely disabled and reviewed the test results ordered by

9

Dr. Osborne in 2010. Taking into consideration all the medical evidence, Dr. Del Valle

10

opined that Dr. David Weidman’s functional assessment of Plaintiff - not the evidence he

11

relied on at the time he wrote his Attending Physician Statement - was most clearly supported

12

by the entire medical record. The Court finds that Dr. Del Valle’s opinion was grounded in

13

the medical evidence and MetLife acted reasonably in relying on her review.

Dr. Del Valle clearly explained why she rejected Dr. Osborne’s

14

Plaintiff also asserts that Dr. Del Valle agreed with most of the treating physicians

15

diagnoses, but her subjective determination as to his functional capacity was at odds with her

16

diagnosis. Plaintiff argues that MetLife should have ordered a functional capacity evaluation

17

or paid for their IPCs to personally examine Demer to eliminate the subjectivity of their

18

IPCs’ determinations. MetLife, however, was not required to do so. The terms of the Plan

19

require Plaintiff to provide proof showing that Plaintiff has satisfied the conditions and

20

requirements for any benefit; “Proof must be provided at claimant’s expense.” Doc. 36-1,

21

AR 24; see also Morales-Alejandro, 486 F.3d at 700 (1st Cir. 2007) (it is claimant’s burden

22

to prove that he is disabled within the plan’s definition).

23

The Court next considers the factual findings made by MetLife on the administrative

24

appeal. MetLife retained the services of Dr. Goldman and Dr. Gordan to review Plaintiff’s

25
26

10

Plaintiff contends throughout his Reply (Doc. 41) that MetLife should have
accorded more weight to the treating physicians rather than its IPCs. This argument is
completely without merit. See Black & Decker Disability Plan v. Nord, 538 U.S. 822,
28 825 (2003) (holding that “plan administrators are not obliged to accord special deference
to the opinions of treating physicians.”)
27

30

1

psychiatric and physiological conditions. Dr. Goldman conducted a “page by page” review

2

of Plaintiff’s medical file and noted preliminarily that Plaintiff has not been seen “with a

3

frequency or intensity that would be deemed appropriate for the level of afunctionality

4

reported by the claimant’s providers.” He concluded that “[g]iven the lack of recent data and

5

the paucity of any compelling objective findings, as well as the lack of serial mental status

6

examinations, this reviewer would be unable to establish the presence of an impairing mental

7

condition.” Dr. Goldman considered all the information in the file and found it insufficient

8

to make a finding of mentally disabled.11

9

With regard to Plaintiff’s physical limitations, Dr. Gordan prepared an eighteen-page

10

report. Dr. Gordan concluded that Plaintiff “likely has a modicum of discomfort from muscle

11

contraction headache, neck and back pain related to spinal degeneration, and referred pain

12

down the limbs from those degenerative changes.” Similar to Dr. Del Valle, Dr. Gordan

13

opined that, although Plaintiff was surely in pain, he was capable of functioning under

14

appropriate restrictions and limitations. MetLife reasonably relied on these findings.

15

In sum, the record taken as a whole establishes that MetLife reasonably relied on its

16

IPCs’ reports. Every doctor agreed that Plaintiff suffered from a combination of depression

17

and chronic pain syndrome, but every doctor also had a different opinion as to Plaintiff’s

18

future functionality. MetLife was required to choose between divergent opinions. MetLife’s

19

decision to rely on its IPCs’ findings was reasonable.

20

CONCLUSION

21

Because MetLife has taken affirmative steps to ameliorate its structural conflict of

22

interest, the IPCs did not abandon their roles to objectively review the medical evidence, and

23
24
25
26
27
28

11

The parties argue extensively over the scope of Dr. Goldman’s response:
“[b]eyond October 29, 2010, there clearly are no objective or other compelling or
convincing data to establish functional impairment as a result of Mr. Demer’s
psychotropic medications.” (Doc. 39-2, AR 668.) (Emphasis added.) Dr. Goldman
appears to have qualified his answer as to mood-altering drugs (psychotropic), however,
Dr. Goldman also opined that he was “unable to establish the presence of an impairing
mental condition.” Therefore, the Court finds that MetLife’s determination that the
medical evidence in totality does not support psychiatric limitations that would prevent
Plaintiff from performing any occupation beyond October 29, 2010 was reasonable.
31

1

the record as a whole supports the denial of benefits, the Court concludes that MetLife’s

2

determination was not affected by its structural conflict of interest and that MetLife operated

3

within its discretion in denying Demer’s claim.

4

Accordingly, IT IS ORDERED as follows:

5

1. Plaintiff’s Motion for Summary Judgment (Doc. 28) is DENIED.

6

2. Defendants’ Cross-Motion for Summary Judgment (Doc. 34) is GRANTED.

7

3. The Clerk of the Court shall enter judgment in favor of Defendants and close its

8
9

file in this matter.
DATED this 30th day of September, 2013.

10
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14
15
16
17
18
19
20
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22
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32