C Ross Mossler v. Aetna Life Insurance Company

Filing 33

MINUTES IN CHAMBERS: FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge S. James Otero:Having carefully reviewed the administrative record and the arguments of counsel, the Court makes the following findings of fact and conclusions of law pursu ant to Federal Rule of Civil Procedure 52.1 See Fed. R. Civ. P. 52. For the reasons discussed below, the Court enters judgment in favor of Plaintiff .The Court finds that under de novo review, Plaintiff established, by the preponderance of the eviden ce, that he was "totally disabled" under the Policy between January 11, 2012, and at least April 25, 2012. Thus, the Court awards Plaintiff retroactive LTD benefits from January 12, 2012, through April 30, 2012. The Court further remands to Defendant to decide whether Plaintiff was totally disabled under the "own occupation" standard between April 30, 2012, and January 11,2014, and if so, whether he was totally disabled thereafter under the "any occupation" standard. Plaintiff shall have until July 14, 2014, to submit a proposed judgment in accordance with this order. (lc) Modified on 6/30/2014 (lc).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)
TITLE:

DATE: June 30, 2014

C. Ross Mossler v. Aetna Life Insurance Co.

========================================================================
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
Victor Paul Cruz
Courtroom Clerk

Not Present
Court Reporter

COUNSEL PRESENT FOR PLAINTIFF:

COUNSEL PRESENT FOR DEFENDANT:

Not Present

Not Present

========================================================================
PROCEEDINGS (in chambers): FINDINGS OF FACT AND CONCLUSIONS OF LAW
The instant case arises under the Employee Retirement Income Security Act of 1974 ("ERISA").
On March 19, 2013, Plaintiff C. Ross Mossler ("Plaintiff") filed a Complaint against Defendant
Aetna Life Insurance Co. ("Defendant"). On December 2, 2013, Plaintiff and Defendant filed their
Opening Briefs. (See generally Pl.'s Opening Br., ECF No. 21; Def.'s Opening Br., ECF No. 23.)
On December 19, 2013, Plaintiff filed his Responding Brief and on December 23, 2013, Defendant
filed its Responding Brief. (See generally Pl.'s Responding Br., ECF No. 28; Def.'s Responding
Br., ECF No. 29.) As ERISA matters are tried on the pleadings, the Court found this matter
suitable for disposition without oral argument and vacated the trial date set for January 14, 2014.
(See Minute Order Vacating Trial Date, ECF No. 32.) Having carefully reviewed the administrative
record and the arguments of counsel, the Court makes the following findings of fact and
conclusions of law pursuant to Federal Rule of Civil Procedure 52.1 See Fed. R. Civ. P. 52. For
the reasons discussed below, the Court enters judgment in favor of Plaintiff.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

The Policy

Defendant issued a long term disability ("LTD") policy (the "Policy") to City National Bank that
became effective on January 1, 2005. (Admin. R. ("AR") 2, 47.) The Policy was amended on
January 1, 2010, which changed the Policy's definitions of "total disability" and "own occupation,"
and included a definition of "substantial and material acts." (AR 50-57.) The amended Policy

1

The Court issues its decision in narrative form "because a narrative format more fully
explains the reasons behind the Court's conclusions, which aids appellate review and
provides the parties with more satisfying explanations." Garrison v. Aetna Life Ins. Co., 558
F. Supp. 2d 995, 996 n.1 (C.D. Cal. 2008). Any finding of fact that is more appropriately
deemed a conclusion of law, or vice versa, is so deemed. See id.
MINUTES FORM 11
CIVIL GEN

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

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DATE: June 30, 2014

defines an individual's first twenty-four months of "total disability" under the "own occupation"
standard as follows:
From the date that you first become disabled and until Monthly
Benefits are payable for 24 months, you will be deemed to be totally
disabled on any day if, as a result of a disease or injury, you are
unable to perform with reasonable continuity the substantial and
material acts necessary to pursue your own occupation and you are
not working in your own occupation.
(AR 51 (some emphasis omitted).) The amended Policy defines "total disability" after the first
twenty-first months of total disability under the "any occupation" standard as follows:
After the first 24 months that any Monthly Benefit is payable during a
period of disability, you will be deemed to be totally disabled on any
day if, as a result of a disease or injury, you are not able to engage
with reasonable continuity in any occupation in which you could
reasonably be expected to perform satisfactorily in light of your age,
education, training, experience, station in life, and physical and mental
capacity that exists within any of the following locations:
•

A reasonable distance or travel time from your residence in
light of the commuting practices of your community; or

•

a distance or travel time equivalent to the distance or travel
time you traveled to work before becoming disabled; or

•

the regional labor market, if you reside or resided prior to
becoming disabled in a metropolitan area.

(AR 51 (emphasis added).)
The Policy defines "own occupation" as "[a]ny employment, business, trade or profession and the
substantial and material acts of the occupation you were regularly performing for your employer
when your period of disability began. Own Occupation is not necessarily limited to the specific job
you performed for your employer." (AR 57 (emphasis omitted).)
The Policy defines "substantial and material acts" as "[t]he important tasks, functions and
operations generally required by employers from those engaged in your own occupation and [sic]
cannot be reasonably be omitted and modified." (AR 57 (emphasis omitted).) The Policy provides
how Defendant procedurally analyzes whether a claimant can perform "substantial and material
acts":
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

In determining what 'substantial and material acts' are necessary to
pursue your own occupation, we will first look at the specific duties
required by your employer. If you are unable to perform one or more
of these duties with reasonable continuity, we will then determined
whether those duties are customarily required of other employees
engaged in your own occupation. If any specific, material duties
required of you by your employee differ from the material duties
customarily required of other employees engaged in your own
occupation, then we will not consider those duties in determining
what 'substantial and material acts' are necessary to pursue your own
occupation.
(AR 57 (emphasis in original).)
In order to qualify for LTD benefits, a claimant's total disability under the "own occupation"
standard must last through a 180-day qualifying period during which no LTD benefits are payable.
(AR 43, 705.) The Policy places the burden of proving eligibility for LTD benefits on the claimant.
(AR 52.) The Policy provides, in pertinent part, that a claimant's disability ends on "[t]he date that
[a claimant fails] to give proof that [the claimant is] still disabled." (AR 52.)
B.

Plaintiff's Employment and LTD Claim

Plaintiff was employed by City National Bank as a Senior Vice President/Leader of the
Entertainment Group. (AR 190.) Plaintiff's last day of employment with City National Bank was
July 15, 2011. (AR 190.)
On January 4, 2012, Plaintiff applied for LTD benefits from Defendant. (AR 190-91.) Plaintiff's
application stated that he suffered "pain throughout the body that limits functioning including
sitting, standing, [and] walking." (AR 190.) Plaintiff listed a diagnosis of "fibromyalgia, myofascial
pain syndrome, degenerative disease, [and] spinal stenosis." (AR 190.) Plaintiff described his
duties as "manag[ing] a relationship line team handling clients in the entertainment industry."
(AR 190.)
Based on Plaintiff's claimed "own occupation" disability date of July 16, 2011, and the required
180-day qualifying period, his LTD benefits would have become payable starting on January 12,
2012, and would end on January 11, 2014. (AR 51, 705.) Thereafter, Plaintiff would only be
entitled to LTD benefits if he was totally disabled under the "any occupation" standard.
(AR 51, 705.)
Defendant interviewed Plaintiff on February 3, 2012. (AR 80.) Plaintiff explained that his condition
had slowly worsened over five years and that he was experiencing muscle spasms, pain, and
severe anxiety. (AR 80.) Plaintiff also stated that he was having a hard time remembering details.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

(AR 80.) In his application for LTD benefits, Plaintiff provided reports from a number of doctors
as well as the Social Security Administration ("SSA"). The Court summarizes these reports as well
as subsequent addendums contained in the Administrative Record.
i.

Dr. Ezekial Fink

Plaintiff was initially treated for pain by Dr. Ezekial Fink of the Neurological Pain Institute in
January 2011. (AR 269.) Plaintiff's "Electromyography" and "Nerve Conduction Velocity" studies
were normal on January 24, 2011. (AR 269.) Plaintiff received epidural steroid injections on
February 7, 2011 (AR 276-78), which provided substantial relief for several weeks, as did
Topamax (AR 279). However, a nerve root block did not provide relief. (AR 279.) Thus, another
epidural steroid injection was provided on April 11, 2011. (AR 282-84.) On January 24, 2011,
Dr. Fink diagnosed Plaintiff with (1) lumbar radiculopathy; (2) possible central radiculopathy, and
(3) osteoarthritis. (AR 272, 274.)
ii.

Dr. Leon Robb

Plaintiff started seeing pain management specialist Dr. Leon Robb in September 2011.
(AR 320-22.) In an undated letter containing Dr. Robb's February 15, 2012 office note, Dr. Robb
diagnosed Plaintiff with (1) fibromyalgia, (2) spinal stenosis, and (3) degenerative joint disease.
(AR 320-22.) Dr. Robb explained that "the pain is distressing and often excruciating and horrible."
(AR 321.) Dr. Robb further explained that the pain "is worse with standing, walking, [and] sitting
for prolonged periods of time," but "is actually relieved by walking briskly, jogging, and meditation."
(AR 321.)
iii.

The Mayo Clinic

In December 2011, Plaintiff was evaluated at the Mayo Clinic by several physicians. (AR 327-28,
981.) The Mayo Clinic's final diagnosis was as follows: (1) fibromyalgia in the setting of complex
medical issues; (2) anxiety; (3) degenerative joint disease at L4-L5 with moderate central stenosis;
(4) history of inflammatory arthritis; (5) history of peripheral neuropathy; (6) iron deficient anemia;
and (7) abnormal outside chest x-ray. (AR 327.) One major method created by the American
College of Rheumatology ("ACR") for diagnosing fibromyalgia is testing 18 "trigger points" on the
body by noting pain for each trigger point when pressed. (AR 710.) If a patient reports pain for
at least 11 of 18 trigger points, this supports a diagnosis of fibromyalgia. (AR 710.) Alternatively,
doctors look to other ACR criteria for diagnosing fibromyalgia, such as the "widespread pain index"
and "symptom severity score." (AR 345, 710) On December 5, 2011, the Mayo Clinic noted that
while Plaintiff only registered 3/18 trigger points for fibromyalgia, he met other ACR criteria to
support a diagnosis of fibromyalgia, with a widespread pain index of 12/19 and a symptom severity
score of 9/12. (AR 345.) The Mayo Clinic also described Plaintiff's anxiety to be "significant" and
"debilitating." (AR 346.)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

iv.

DATE: June 30, 2014

Dr. Steven Tan

Plaintiff's primary care physician is Dr. Steven Tan, a member of the American Board of Internal
Medicine and the National Certification Committee for Acupuncture and Oriental Medicine.
(AR 976.) During the LTD benefit application process, Defendant obtained records for thirty-two
of Plaintiff's office visits with Dr. Tan between January 6, 2011, and February 28, 2012
(AR 353-416), and on January 10, 2012, Dr. Tan submitted an Attending Physician's Statement
("APS") to Defendant (AR 301-302.) In the APS, Dr. Tan listed Plaintiff's primary diagnosis as
fibromyalgia and his secondary diagnosis as spinal stenosis. (AR 301.) Dr. Tan indicated that
Plaintiff's status had "regressed" and that Plaintiff had no ability to work. (AR 302.)
In a letter dated January 13, 2012, Dr. Tan briefly summarized Plaintiff's history and diagnosis and
explained that his prognosis is poor "given that most of these conditions are chronic in nature and
that he has exhausted many appropriate therapies." (AR 976.) Dr. Tan also noted that Plaintiff
"has been intolerant to or unresponsive to steroid injections, epidurals, Vicodin, Lyrica, Cymbalta,
Norco, Flexeril and Soma." (AR 976.) Dr. Tan also noted that a "[p]hysical exam has documented
greater than 11 of 18 fibromyalgia trigger points," satisfying the trigger point test. (AR 976.)
Furthermore, Dr. Tan noted that Plaintiff "also tried physical therapy, acupuncture and trigger point
injections." (AR 976.)
On April 25, 2012, Dr. Tan wrote a letter to Defendant stating that Plaintiff was disabled and
unable to work. (AR 1614.)
v.

Dr. Arash Horizon

Plaintiff saw rheumatologist Dr. Arash Horizon beginning in January of 2010. (AR 493, 716-80.)
On March 5, 2012, Dr. Horizon submitted an APS to Defendant that listed Plaintiff's primary
diagnosis as fibromyalgia, his secondary diagnosis of undifferentiated connective tissue disorder,
and his "other" diagnosis of gout. (AR 417.) The fibromyalgia diagnosis appears to be based on
Plaintiff's 14/18 noted trigger points from an exam on January 19, 2012. (AR 902.) Unfortunately,
while Dr. Horizon discussed the extent of Plaintiff's disability in the APS, his comments are
somewhat ambiguous. (AR 417-19.) On the first page, Dr. Horizon stated that Plaintiff "will need
to be absent from work due to a disability beginning" on July 7, 2011 and ending on "present,"
where the APS was signed on March 5, 2012. (AR 417 (emphasis added).) However, on the next
page, Dr. Horizon indicated that Plaintiff could physically perform sedentary work but that Plaintiff
suffered from fatigue, malaise, no stamina, joint swelling, poor memory, poor sleep, and that
Plaintiff could only work four hours per day and three days per week. (AR 418.) Dr. Horizon also
provided that Plaintiff was able to give supervision and work cooperatively with others in group
settings. (AR 418.) In the APS, Dr. Horizon estimated Plaintiff's "return to work" date to be
December 30, 2012. (AR 418.) Plaintiff stopped seeing Dr. Horizon in March of 2012. (AR 701.)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

vi.

DATE: June 30, 2014

Dr. Daryl Lum

Starting January 2011, Plaintiff saw Dr. Daryl Lum, a doctor of internal medicine at the Ronald
Reagan UCLA Medical Center. (AR 316-17, 483-87.) On February 17, 2012, Dr. Lum completed
an APS stating a primary diagnosis of fibromyalgia, a secondary diagnosis of spinal stenosis, and
an "other" diagnosis of peripheral neuropathy. (AR 316.) The APS stated that Plaintiff
experienced fatigue, confusion, and had difficulty driving for prolonged periods. (AR 317.)
Dr .Lum further stated that Plaintiff's symptoms are "worsened by stress, worse later in day, [and
he has] difficulty concentrating." (AR 317.) Dr. Lum described Plaintiff's status as "regressed" and
that he had "difficulty sitting continuously." (AR 317.) Dr. Lum also noted that Plaintiff appeared
to be motivated to return to work. (AR 317.) The APS concluded by stating that Plaintiff had no
ability to work. (AR 317.)
On April 30, 2012, Dr. Lum wrote a letter to Defendant stating that Plaintiff was disabled and
unable to work. (AR 713.)
vii

Dr. Wonil Lee

After Plaintiff stopped seeing Dr. Horizon in March of 2012, he began seeing a new
rheumatologist, Dr. Wonil Lee in April of 2012. (AR 1611-13.) In his initial letter on April 17, 2012,
Dr. Lee noted that Plaintiff had 12/18 trigger points, and thus Dr. Lee agreed with Plaintiff's
diagnosis of fibromyalgia. (AR 1613.) The letter also indicated that Plaintiff required a
multi-disciplinary team of doctors in Los Angeles to continue to monitor his therapy and that
Dr. Lee would be Plaintiff's fibromyalgia doctor. (AR 1613.)
viii.

Social Security Disability Benefits

On February 17, 2012, Plaintiff notified Defendant that Plaintiff had been awarded Social Security
Disability ("SSD") benefits by the SSA. (AR 85.) Plaintiff also faxed a copy of the award letter to
Defendant. (AR 296-99.)
C.

Defendant Commissions a Focused Case of Plaintiff by Dr. Milt Gavlick

On Defendant's request, Dr. Milt Gavlick, specializing in Occupational Medicine, began a Focused
Case of Plaintiff. (AR 699-702.) Defendant provided Dr. Gavlick with 334 pages of records for
his review. (AR 700.) Dr. Gavlick never personally examined Plaintiff. Rather, he conducted
peer-to-peer reviews with three of Plaintiff's treating physicians. (AR 699-702.)
On April 19, 2012, Dr. Gavlick spoke with Dr. Lum regarding Dr. Lum's opinion that Plaintiff had
no ability to work. (AR 701.) Dr. Lum felt this was mainly due to Plaintiff's own complaints of pain,
which seemed "more severe" than most fibromyalgia patients. (AR 701.) Dr. Lum described
Plaintiff as ambulatory and able to sit in his office without assistance or perceived difficulties.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

(AR 701.) Dr. Lum had no knowledge of Plaintiff's exercise habits or his other activities. (AR 701.)
Dr. Lum stated that Dr. Tan was most familiar with and responsible for treating Plaintiff's
fibromyalgia so that all questions regarding functionality should be directed at Dr. Tan. (AR 701.)
On April 19, 2012, Dr. Gavlick spoke with Dr. Tan regarding Dr. Tan's opinion that Plaintiff had no
ability to work. (AR 701.) Dr. Tan stated that his opinion was based on Plaintiff's subjective
complaints of both generalized fibromyalgia pain and his back and leg pain. (AR 701.)
On April 24, 2012, Dr. Gavlick contacted Dr. Horizon. According to Dr. Gavlick's summary of the
conversation, Dr. Horizon explained that Plaintiff was no longer his patient because he and Plaintiff
had a disagreement over Plaintiff's return to work date. (AR 701.) Dr. Horizon allegedly described
Plaintiff as "litigious" and stated that he had to discontinue seeing Plaintiff when he could find no
disease process that would allow him to continue to complete disability forms for Plaintiff.
(AR 701.) Dr. Horizon explained that an independent examination of Plaintiff would likely come
to similar conclusions. (AR 701.)
On April 24, 2012, Dr. Gavlick completed the Focused Case of Plaintiff. (AR 699-702.)
Dr. Gavlick stated that because fibromyalgia is a functional syndrome without objective findings,
there was no basis for physician-directed work restrictions or limitations related to the diagnosis.
(AR 700.) Dr. Gavlick further stated that Plaintiff's records lacked any neuropsychological testing
results that would support physician-directed work limitations based upon cognitive deficits.
(AR 700.) As to Plaintiff's lumbar spinal stenosis, Dr. Gavlick noted that it was the Mayo Clinic's
impression that Plaintiff's spinal stenosis was to be unlikely significant since Plaintiff was capable
of jogging three miles. (AR 700.) In addition, Dr. Gavlick noted that Plaintiff had not sought
surgical intervention. (AR 700.) Dr. Gavlick concluded that the medical records did not support
a finding that Plaintiff was unable to return to work full time because he did not meet the definition
for "totally disabled" for his "sedentary" occupation. (AR 701.) Dr. Gavlick stated that his
impression was "unlikely to change without new and conclusive medical objective evidence for
impairment that would interfere with sedentary . . . work." (AR 701.)
D.

Defendant's Denial of Plaintiff's Claim for LTD Benefits

Relying on Dr. Gavlick's opinion, Defendant denied Plaintiff's claim for LTD benefits in a letter
dated April 30, 2012. (AR 705-11.) The denial letter summarized Plaintiff's submitted medical
reports. (AR 705-11.) The denial letter stated that Plaintiff has "a [s]elf-reported history of
fibromyalgia and rheumatoid arthritis with no documentation to support that either of these
diagnosis is supported by current documentation." (AR 709.) The letter noted that "[t]here is no
objective evidence to support the need for any restrictions or limitation with regards to full time in
at least a sedentary physical demand level occupation." (AR 709.) The letter then characterized
Plaintiff's occupation as a "sedentary occupation." (AR 709-10.) The denial letter further stated
that because Plaintiff's fibromyalgia is "a functional syndrome without objective findings, there is
no basis for [Plaintiff's] physician directed work restrictions or limitations . . . ." (AR 708.) The
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

denial letter further described fibromyalgia as "generally in and of itself, not a disabling condition
to persons with sedentary or light strength occupations." (AR 710.)
Citing outdated Policy terms, Defendant also explained in the denial letter that when reviewing
eligibility for LTD benefits, it must focus on whether Plaintiff has the ability to perform the material
duties of his own occupation as a Senior Vice President/Team Leader of Entertainment for "any
employer." (AR 706.) Defendant explained that the medical records and exam findings did not
support a finding that Plaintiff was unable to perform the core elements of his own occupation for
any employer as of July 16, 2011. (AR 705.)
The denial letter also summarized the medical records from the Mayo Clinic and Dr. Horizon,
Dr. Lum, Dr. Tan, Dr. Robb, and Dr. Fink. (AR 706-09.) The denial letter noted that despite
Plaintiff's complaints of severe pain, there were no focal findings, was no need for surgery, no
definitive diagnosis of rheumatoid arthritis, and MRI findings were minimal. (AR 706.) The letter
stated that the physical exams did not show Plaintiff to have any rheumatologic deficits and the
exam findings and blood work were within normal limits. (AR 706.) The letter also stated that
Plaintiff had no documented joint swelling, synovitis, skin changes, eye complaints, and that his
fibromyalgia trigger points were not noted. (AR 706.) The letter stated that there was no objective
evidence to support the need for any restrictions or limitations with regards to Plaintiff's full-time
occupation in at least a sedentary physical demand level occupation. (AR 709.)
The letter noted that Plaintiff had been approved for SSD benefits but that Defendant's disability
determination and the SSA's disability determination are made independently and are not always
the same. (AR 710.) The letter further discussed Plaintiff's SSD award:
The difference between our disability determination and the SSD
determination may be driven by [SSA] regulations. . . . Or, it may be
driven by the fact that we have information that is different from what
SSA considered. We have not been provided with the basis for the
SSD determination, and the evidence that was relied on for the SSD
determination had not been identified to us. Therefore, even though
you are receiving SSD benefits we are unable to give it significant
weight in our determination . . . .
(AR 710.) The letter invited Plaintiff to appeal. (AR 710.)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

E.

DATE: June 30, 2014

Plaintiff's Appeal Is Denied

On October 19, 2012, Plaintiff appealed the denial of his LTD claim. (AR 1376.) As part of this
appeal, Plaintiff sent a 108-page letter (AR 1376-1487), his sworn declaration (AR 1488-96),
medical records (AR 1498-1927), Plaintiff's SSD award letter (AR 2211-14), and medical,
vocational, and medication literature (AR 1928-2209, 2216-2517). In addition to summaries of
Plaintiff's conditions and medical records, the appeal letter included the following arguments:
(1) Defendant failed to consider pain, fatigue, medication side effects, and mental clouding;
(2) Defendant was judicially estopped from denying that Plaintiff was disabled based on his SSD
award; (3) there were systematic errors of Defendant's vocational assessment; and (4) Plaintiff
was disabled under the terms of the Policy was thus entitled to LTD benefits under the Policy. (AR
1376-1487.)
On October 23, 2012, Plaintiff sent Defendant the entire SSA file on Plaintiff's claim for SSD
benefits. (AR 931-1374.) In the SSA's explanation for its disability determination, the SSA
described Plaintiff's occupation as requiring him to "walk/stand 1 hr, sit 8 hrs, write/type/handle
small objects 8 hrs . . . supervise[] 6 employees 40% of the time." (AR 1131.) The SSA
concluded that since Plaintiff is "unable to perform [his prior relevant work] as he describes or as
it is generally performed in the national economy, . . . [Medical-Vocational Rule 202.06] directs a
decision of disabled . . . ." (AR 1131.)
In response to Plaintiff's appeal, Defendant obtained "physician reviews" by Dr. Robert Swotinsky,
specializing in occupational medicine (AR 2796-806), and Dr. Lawrence Burstein, a psychologist
(AR 2809-13). Neither doctor personally examined Plaintiff, but rather they relied on written
records for their review. Both concluded that Plaintiff is not disabled for the reasons set forth
below. (AR 2809-13, 2796-806.)
i.

Dr. Robert Swotinsky

On December 6, 2012, Dr. Swotinsky, specializing in occupational medicine, conducted an
independent physician review of Plaintiff's file. (AR 2797-806.) Dr. Swotinsky described Plaintiff
as a "former bank executive," and categorized his job as having "sedentary" physical
requirements. (AR 2797.) However, Dr. Swotinsky noted Plaintiff's claim that he sometimes had
to "stand for long periods of time at receptions and sometimes traveled for work." (AR 2797.)
Dr. Swotinsky attempted to conduct a peer-to-peer review with Dr. Fink on three separate
occasions (December 5-7, 2012), but Dr. Fink never returned his calls. (AR 2801.) In addition,
Dr. Swotinsky attempted a peer-to-peer review with Dr. Horizon on December 5, 2012, and
December 6, 2012, but each time was told Dr. Horizon was unavailable. (AR 2802.)
Dr. Swotinsky then went through each one of Plaintiff's conditions and concluded that Plaintiff was
not disabled. (AR 2802-06.) Based upon the provided documentation, Dr. Swotinsky determined
that Plaintiff reported "physical symptoms for which there [was] no physiologic[al] basis."

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CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

(AR 2805.) Dr. Swotinsky noted that if Plaintiff's limitations were based on mental illness, they
were not demonstrated by the file reviewed. (AR 2805.)
ii.

Dr. Lawrence Burstein

On December 19, 2012, Dr. Burstein, specializing in Psychology, conducted an independent
physician review of Plaintiff's application. (AR 2809-13.) Dr. Burstein noted that there did not
appear to be any documents from a mental health professional during the period under review,
nor did Mossler's mental health appear to be the focus of treatment. (AR 2810.) Dr. Burstein
noted that Plaintiff's mental status examination was not consistent with impairments in Plaintiff's
psychological functioning. (AR 2812.) Dr. Burstein stated that while Dr. Tan's clinical notes
"occasionally contain the words[] 'depression' and/or 'anxiety' among the diagnoses, . . . the very
brief notes did not contain any findings that I could discern to support that Plaintiff was in any way
impaired as a result of his change in mood." (AR 2811.) Dr. Burstein noted that Dr. Horizon
indicated that Plaintiff's mental status, mood, and affect were normal. (AR 2811.) Dr. Burstein
concluded that the submitted documentation did not support a functional impairment from a
psychological perspective from January 12, 2012, through November 30, 2012. (AR 2812.)
iii.

Defendant Invites Dr. Horizon and Dr. Fink To Review Dr. Swotinsky and
Dr. Burstein's Independent Reviews

On January 7, 2013, Defendant informed both Dr. Horizon and Dr. Fink that Defendant was
currently reviewing a claim for disability benefits for Plaintiff. (AR 2789-90.) Defendant explained
that Dr. Swotinksy attempted to reach both of them but was unsuccessful. (AR 2789-90.)
Defendant asked Dr. Horizon and Dr. Fink to review Dr. Swotinsky and Dr. Burstein's independent
reviews and to respond within five calendar days if they disagreed with the conclusions.
(AR 2789-90.) Dr. Horizon and Dr. Fink never responded to Defendant's request.
iv.

Denial Letter Upholding Decision

On January 16, 2013, nine days after sending the request letter to Dr. Horizon and Dr. Fink,
Defendant sent a two-page letter to Plaintiff stating that the original decision to deny Plaintiff's LTD
claim had been upheld. (AR 2791-92.) After again citing to outdated Policy definitions and then
providing a summary of Plaintiff's conditions, Defendant provided the following basis for its
decision to uphold the denial:
Based on our review of the information you provided . . . we have
determined that there was a lack of medical evidence (i.e. progress
notes documenting abnormal physical exam findings, abnormal
diagnostic testing, behavioral observations, cognitive impairments in
functioning, etc.) supporting a functional impairment that would have
prevented [Plaintiff] from performing the material duties of his own
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

occupation as of January 12, 2012. Therefore, the original decision
to deny LTD benefits effective January 12, 2012, has been upheld.
(AR 2792.) Defendant explained that before reaching its conclusion, it forwarded Plaintiff's file to
Dr. Swotinksy and Dr. Burstein for further review. (AR 2792.) Defendant noted that Dr. Horizon
and Dr. Fink never responded to Defendant's letter asking them to review Dr. Swotinsky and
Dr. Burstein's independent reviews. (AR 2792.) In addition, Defendant explained why it did not
give the SSD award significant weight:
We understand that [Plaintiff] was approved [for SSD] benefits.
[H]owever, our disability determination and the SSD determination are
made independently and are not always the same. The difference
between our determination and the SSD determination may be driven
by the [SSA] regulations. For example, the SSA regulations require
that certain disease/diagnosis or certain education or age levels be
given heavier or even controlling weight in determining whether an
individual is entitled to SSD benefits. Or, it may be driven by the fact
that we have information that is different from what the SSA
considered. Therefore, even though [Plaintiff] is receiving SSD
benefits, we are unable to give significant weight in our determination,
and we find that [Plaintiff is not] eligible for LTD benefits based on the
plan definition as stated above.
(AR 2792.) On March 19, 2013, Plaintiff filed a Complaint with this Court for declaratory relief for
LTD benefits. (See generally Compl., ECF No. 1.)
II.

DISCUSSION

Under Section 1132 of ERISA, a beneficiary or plan participant may sue "to recover benefits due
to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify
his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). "[A] denial
of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless
the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility
for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989). "[I]f the plan does confer discretionary authority as a matter of contractual
agreement, then the standard of review shifts to abuse of discretion." Abatie v. Alta Health & Life
Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc).
In the present case, the parties have stipulated that the de novo standard of review applies. (See
Joint Stipulation, ECF No. 17.) Thus, the Court will review Defendant's denial of LTD benefits de
novo and will decide whether Plaintiff has met his burden of establishing total disability by the
preponderance of the evidence. See Oster v. Standard Ins. Co., 759 F. Supp. 2d 1172, 1185
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

(N.D. Cal. 2011) ("In an ERISA action, the plaintiff carries the burden of showing, by a
preponderance of the evidence, that he was disabled under the terms of the Plan during the claim
period."); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602,
622 (1993) ("The burden of showing something by a preponderance of the evidence . . . simply
requires the trier of fact to believe that the existence of a fact is more probable than its
nonexistence." (internal quotation marks and citation omitted)).
The interpretation of terms in an ERISA plan is often crucial to determining whether a participant
is eligible to benefits under an ERISA plan. Firestone Tire & Rubber Co., 489 U.S. at 115. When
interpreting ERISA insurance plans, such as the one involved here, uniform federal common law
governs. Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1439 (9th Cir. 1990). Plan administrators
must discharge their duties "in accordance with the documents and instruments governing the
plan." 29 U.S.C. § 1104(a)(1)(D). Moreover, under uniform federal law, courts are to interpret
terms in ERISA plans "in an ordinary and popular sense" and are not to "artificially create
ambiguity where none exists." Evans, 916 F.2d at 1441. "[W]hen disputes arise, courts should
first look to the explicit language of the agreement to determine, if possible, the clear intent of the
parties." Gilliam v. Nev. Power Co., 488 F.3d 1189, 1194 (9th Cir. 2007) (quotation and internal
alterations omitted). Additionally, each provision of a plan should be interpreted consistently with
the entire document, and if a plan is ambiguous, then the court can examine extrinsic evidence
to determine the intent of the parties. Id. (internal citations omitted).
A.

Plaintiff Has Established Total Disability between July 16, 2011, and April 30, 2012

The question before the court is whether Plaintiff has met his burden of proving that he was totally
disabled from performing his "own occupation" during the 180-day qualifying period and during at
least the first twenty-four months thereafter, from January 12, 2012, through January 11, 2014.
(AR 59, 64.) For the following reasons, the Court finds that Plaintiff has met his burden of
establishing total disability between July 16, 2011, and at least April 30, 2012. Accordingly, the
Court finds that Defendant incorrectly denied Plaintiff's LTD claim.
1.

Medical Evidence of Plaintiff's Conditions

Plaintiff claims to suffer from the following conditions: (1) fibromyalgia; (2) peripheral neuropathy;
(3) myofacial pain syndrome; (4) spinal stenosis; (5) degenerative osteoarthritis; (6) degenerative
disc disease; (7) radiculopathy; (8) polyarticular gout; (9) anxiety; and (10) depression.
(AR 1390-91.) Plaintiff claims that he has the following symptoms: (1) extreme chronic pain; (2)
fibro fog; (3) muscle spasms; (4) fatigue; (5) memory loss; (6) muscle pain; (7) joint pain; (8)
morning stiffness; (9) joint swelling; and (10) inability to sit or stand for long periods of time. (AR
1391.) The Mayo Clinic and Dr. Fink, Dr. Robb, Dr. Tan, Dr. Horizon, Dr. Lum, and Dr. Lee have
well documented that Plaintiff suffers from these diseases to varying degrees. (AR 269, 274, 27678, 279-80, 282-83, 301-02, 316-17, 320-22, 327-28, 345-46, 353-416, 417-19, 483-87, 492-93,
713, 902, 976, 981-82, 1611-13, 1614.)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

While the physicians operating on behalf of Defendant provide conflicting evidence regarding
these diagnoses (AR 699-701, 2797-806, 2809-13), "[t]he Court notes that inasmuch as any such
hierarchy can be established between conflicting opinions of physicians as to a single patient, the
Court gives the greatest weight to [Plaintiff's treating physicians], who have spent some amount
of time with Plaintiff and assessed [his] symptoms over time." Rorabaugh v. Continental Cas. Co.,
No. CV 05-03612 SBC, 2006 WL 4384712, at *6 (C.D. Cal. Dec. 8, 2006) (footnote omitted). In
Rorabaugh, the lower court found the defendant insurance company's reviewing physicians were
less credible than the treating physicians, in part because they never personally examined the
plaintiff. Id. at *6. Given that Defendant's reviewing physicians did not examine Plaintiff and
merely confined their reviews to Plaintiff's file, the Court finds that the opinions of Defendant's
reviewing physicians should not outweigh the opinions of Plaintiff's treating physicians, all of whom
had in-person contact with Plaintiff.2 "On de novo review, a district court may, in conducting its
independent evaluation of the evidence in the administrative record, take cognizance of the fact
(if it is a fact in the particular case) that a given treating physician has 'a greater opportunity to
know and observe the patient' than a physician retained by the plan administrator." Jebian v.
Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1109 n.8 (9th Cir.
2003) (citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003)); see also Salomaa
v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011) ("An insurance company
may choose to avoid an independent medical examination because of the risk that the physicians
it employs may conclude that the claimant is entitled to benefits.").
Plaintiff's primary, and most controversial, diagnosis is fibromyalgia. "Fibromyalgia is a type of
muscular or soft-tissue rheumatism that affects principally muscles and their attachment to bones,
but which is also commonly accompanied by fatigue, sleep disturbances, lack of concentration,
changes in mood or thinking, anxiety and depression." Lang v. Long-Term Disability Plan of
Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 796 (9th Cir. 1997) (citing Fibromyalgia,
Arthritis Foundation Pamphlet, at 1, 5 (1992)). "The depression and anxiety associated with
fibromyalgia are believed to be symptoms of this muscular disease, rather than causes of it." Id.
"Benefits cases involving fibromyalgia are thorny in that the disease's symptoms are difficult to
quantify" because "[d]iagnoses necessarily involve subjective determinations as to patients' pain
2

In Plaintiff's Request for Judicial Notice ("RJN"), Plaintiff offers extrinsic evidence outside
the Administrative Record regarding the credibility of Defendant's reviewing physicians.
(See generally Pl.'s RJN, ECF No. 22.) Under the de novo standard, the Court may
consider evidence that was not before the plan administrator in some circumstances.
Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 943-44 (9th
Cir. 1995). However, because the Court finds that Plaintiff met his burden of proving total
disability from the record alone, the Court does not find circumstances that "clearly
establish that additional evidence is necessary to conduct an adequate de novo review of
the benefit decision." Mongeluzo, 46 F.3d at 944 (quoting Quesinberry v. Life Ins. Co. of
N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993)); see also Fleming v. Kemper Nat. Servs., Inc.,
No. C 03-05135 MMC, 2005 WL 839639, at *16 (N.D. Cal. Apr. 11, 2005).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

level, often relying largely on the patients' own accounts." Lavino v. Metro. Life Ins. Co., 779
F. Supp. 2d 1095, 1108 (C.D. Cal. 2011); see also Minton v. Deloitte & Touche USA LLP Plan,
631 F. Supp. 2d 1213, 1219 (N.D. Cal. 2009) (explaining that there are no laboratory tests to
confirm a fibromyalgia diagnosis). "Rheumatology is the relevant specialty for fibromyalgia."
Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004) (citation omitted).
Plaintiff's diagnosis of fibromyalgia is well documented and is based on criteria created by the
American College of Rheumatology. On December 5, 2011, the Mayo Clinic noted that while
Plaintiff only registered 3/18 trigger points for fibromyalgia, he met other criteria to support a
diagnosis of fibromyalgia, with a widespread pain index of 12/19 and a symptom severity score
of 9/12. (AR 345.) On January 19, 2012, Dr. Horizon noted Plaintiff's 14/18 trigger points.
(AR 902.) On April 17, 2012, Dr. Lee noted Plaintiff's 12/18 trigger points. (AR 1613.)
Defendant argues that Plaintiff failed to meet his burden of proving that he was totally disabled due
to fibromyalgia, in part because he provided no objective evidence of fibromyalgia that would
support a total disability finding. (Def.'s Opening Br. 14-16; Def.'s Responding Br. 7-8)
Defendant's denial letter stated that because Plaintiff's fibromyalgia is "a functional syndrome
without objective findings, there is no basis for [Plaintiff's] physician directed work restrictions or
limitations . . . ." (AR 708.) The denial letter further described fibromyalgia as "generally in and
of itself not a disabling condition to persons with sedentary or light strength occupations."
(AR 710.)
In making this finding, Defendant discounted Plaintiff's subjective reports of pain. See Abdullah
v. Accentcare Long Term Disability Plan, No. C 09-02909 MMC, 2012 WL 4112291, at *11 (N.D.
Cal. Sept. 19, 2012). As in Abdullah, "[b]y requiring objective evidence of functional impairment
[Defendant] essentially discounted in [its] entirety [Plaintiff's] reports of pain and cognitive
symptoms as well as [his] own and [his] treating physicians' assessments of how those symptoms
interfered with [his] ability to function . . . ." Id. The court in Abdullah held that "[g]iven the
absence of any evidence to even raise a question as to [the plaintiff's] credibility, and by
demanding objective evidence for a disease that eludes such measurement . . . [the insurance
company] established what amounted to a threshold that can never be met by claimants who
suffer from fibromyalgia or similar syndromes, no matter how disabling the pain." Id. (citations and
quotations omitted); see also Lundquist v. Continental Cas. Co., 394 F. Supp. 2d. 1230, 1251
(C.D. Cal. 2005) (holding that the defendant insurance company "unreasonably discounted the
opinions of [the plaintiff's physicians] on the basis that their opinions were unsupported by any
objective medical evidence. . . .").
The Court agrees with the reasoning in Abdullah and holds that an insurance company cannot
demand objective evidence of fibromyalgia "in the absence of any evidence to even raise a
question as to [Plaintiff's] credibility." Abdullah, 2012 WL 4112291, at *11. Defendant claims that
there is reliable evidence that Plaintiff was not credible. (Def.'s Responding Br. 9.) Defendant
repeatedly notes that Plaintiff's primary rheumatologist, Dr. Horizon, ceased treating Plaintiff when
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

Dr. Horizon could find no disease process that would allow him to continue to complete disability
forms for Plaintiff. (Def.'s Responding Br. 9.) Defendant also repeatedly notes that Dr. Horizon
allegedly described Plaintiff as a "litigious person" during his phone call with Dr. Gavlick. (Def.'s
Responding Br. 9; AR 701.) However, the Court notes that the contents of the phone call were
written in shorthand by Dr. Gavlick. (AR 701.) Thus, the context in which Dr. Horizon called
Plaintiff "litigious" is unclear. Furthermore, Defendant has provided no evidence that Plaintiff has
been involved in any prior lawsuit. Most importantly, the Court is not convinced that being
"litigious" has any bearing on one's credibility regarding the experience and reporting of debilitating
pain. Thus, the Court gives little weight to Dr. Horizon's alleged statement regarding Plaintiff as
being "litigious."
Accordingly, the Court does not require Plaintiff to present objective evidence of fibromyalgia in
analyzing whether Plaintiff is totally disabled under the Policy, and takes into account Plaintiff's
subjective reports of his illnesses. As discussed, Plaintiff's subjective reports and the opinions of
Plaintiff's treating physicians strongly support a diagnosis of fibromyalgia.
2.

Plaintiff's Own Occupation

In determining whether Plaintiff was and still is "totally disabled" under the Policy, the Court looks
to the amended 2010 language of "own occupation," "total disability," and "material and substantial
acts." (See AR 50-57.) The Court, in its de novo review, first looks at Plaintiff's specific duties
required by his employer, City National Bank. If Plaintiff is unable to perform one or more of those
duties with reasonable continuity, the Court must determine whether those duties are customarily
required of other employees engaged in his own occupation. (Pl.'s Opening Br. 11; AR 50-57.)
Plaintiff had the following duties as a Senior Vice President/Leader of the Entertainment Group:
(1) sales management; (2) staff management; (3) portfolio management; and (4) credit quality and
compliance. (AR 223-25.) More specifically, the job description provides:
The Team Leader Entertainment [sic] is responsible for managing a
team of Relationship Managers and sales support staff in addition to
managing the profitability and risk of an assigned portfolio.
Responsible for managing and professionally developing relationship
managers with an emphasis on sales [] growth, portfolio growth and
cross selling. Provides leadership and guidance to a team in the
attainment of profitable relationships and high levels of performance.
Responsible for assigned portfolio; developing business opportunities
and maintaining a profitable portfolio by building relationship with
prospects and customers consistent with the objectives of the bank.
This person will actively work with other areas of [City National Bank]
as well as with other Entertainment colleagues to deliver exemplary
service for clients.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

(AR 223.) Plaintiff reiterates that he was responsible for managing a team of managers and sales
support staff, in addition to managing the profitability and risk of a sizeable portfolio that generated
ten million dollars in annual profits for City National Bank. (AR 1490.)
In analyzing whether Plaintiff could perform his own occupation, Defendant and its reviewing
physicians reasoned that Plaintiff's own occupation was sedentary and that since in their opinion
Plaintiff could sit and do other physical activities consistent with a sedentary job, he therefore
could perform the material and substantial acts of his own occupation. (AR 705-11; 2791-92.) For
example, after performing a Dictionary of Occupational Titles ("DOT") lookup and reviewing
Plaintiff's job description, Defendant decided that Plaintiff's job correlated to two occupations:
(1) "Sales Manager" with a Physical Demand Level ("PDL") of "sedentary"; and (2) "Sales
Representative, Financial" with a PDL of "light." (AR 168.) Defendant concluded that Plaintiff's
"occupation holds a sedentary to light physical demand level in the national economy." (AR 168.)
However, nowhere in the Policy does it provide that Plaintiff's own occupation for any employer
would be determined by that occupation's PDL, nor does the Policy mention the word "sedentary."
In Sabatino v. Liberty Life Assurance Co. of Boston, the Northern District of California questioned
the classification of the plaintiff's engineer profession as "sedentary":
The crux of Plaintiff's claim for disability benefits is severe and chronic
pain and the cognitive impairments caused by the pain medications
she must take to manage this pain. Plaintiff was employed as an
engineer, which may be a sedentary occupation, but one that requires
careful thought and concentration. Simply being able to perform
sedentary work does not necessarily enable one to work as an
engineer.
286 F. Supp. 2d 1222, 1231 (N.D. Cal. 2003) (emphasis added).
The Court declines to simply categorize Plaintiff's "own occupation" as sedentary and engage in
a narrow analysis of whether Plaintiff could perform sedentary work. See Rorabaugh, 2006
WL 4384712, at *4 ("Instead of inquiring whether [the plaintiff] could perform 'her occupation' (the
applicable standard under the Policy), [the defendant insurance company] asked [its reviewing
doctor] to determine whether [the plaintiff's] 'functionality' was at the 'heavy, medium, light, or
sedentary' level.")
Because of his conditions, Plaintiff stated to Defendant that he could not perform the material and
substantial acts of his own occupation for a number of reasons. Plaintiff experiences fatigue and
pain regularly, sometimes so much that he is barely able to get out of bed. (AR 1393.) Thus, he
claims that he cannot work the required eight hours a day, five days a week, much less the
extended hours necessary to successfully perform his own occupation. (AR 1393.) He sometimes
had to be in the office for fourteen hours in one day, but because of his condition he faded out by
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

one or two in the afternoon. (AR1393-94.) Later in the day, he could not respond to client emails
in a coherent fashion. (AR 1394.) Plaintiff had difficulty concentrating and remembering details,
so when he could not remember a specific client's circumstances, he could not provide the
information required of him. (AR 1393.) Plaintiff claimed that the symptoms are aggravated by
stress and his job is extremely high stress. (AR 1394.) Plaintiff also explained that he could not
perform his job duties because of the pain, brain fog, and fatigue, and as his symptoms got worse,
his job demands stayed the same. (AR 1394.) Plaintiff also has chronic lower back pain in both
buttocks which worsens when he stands, walks or sits for prolonged periods of time. (AR 1394.)
Because he cannot sit for prolonged periods of time, he could not sit through long management
meetings that he was required to attend. (AR 1394.)
After a thorough review of the Administrative Record, the Court finds that Plaintiff has provided
sufficient evidence to suggest that he cannot perform his own occupation, even in a "sedentary"
fashion. However, even assuming Plaintiff could perform sedentary work, Plaintiff has many other
intellectual responsibilities that require both financial expertise as well as a high level of
interpersonal skills. The Court does not decide whether fibromyalgia by itself is disabling, but
rather finds that Plaintiff has provided sufficient medical evidence that all of his conditions, taken
together, cause significant pain and mental impairment that prevents Plaintiff from meeting the
requirements of his own occupation.
Defendant argues that Dr. Gavlick, Dr. Swotinsky, and Dr. Burstein's opinions that Plaintiff was
not totally disabled were in line with Plaintiff's own rheumatologists, Dr. Horizon and Dr. Lee.
Defendant claims that Dr. Horizon and Dr. Lee never opined that Plaintiff was disabled, despite
noting trigger points. (Def.'s Responding Br. 8.) However, the Court finds this statement to be
inaccurate. On the first page of Dr. Horizon's APS signed on March 5, 2012, he stated that
Plaintiff "will need to be absent from work due to a disability beginning" on July 7, 2011 and
ending on "present."3 (AR 418.) Furthermore, Plaintiff's treating physicians, Dr. Tan and Dr. Lum,
both filled out APS forms attesting to Plaintiff's inability to work. (AR 301-02, 316-17.) Taken
together, the Court finds the three APS forms to be highly persuasive evidence of Plaintiff's total
disability.

3

The term "present" is somewhat ambiguous as on the next page of the APS, Dr. Horizon
estimated Plaintiff's return to work date to be December 30, 2012. (AR 417-18.) On the
same page, Dr. Horizon listed a number of work restrictions for Plaintiff including that he
could only work four hours per day and three days per week. (AR 418.) Thus, it
appears that Dr. Horizon's work restrictions would take effect after March 5, 2012, until the
estimated return date of December 30, 2012. Dr. Horizon's APS provides evidence that
Plaintiff was totally disabled at least until March 5, 2012, with significant restrictions
afterwards.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

A finding of total disability is buttressed by Plaintiff's required working hours. He was required to
be in the office for at least eight hours, and sometimes up to fourteen hours per day. (AR
1393-94.) Plaintiff claims that he could not perform at a high level for the required hours. In their
APS forms, neither Dr. Tan, Dr. Horizon, nor Dr. Lum cleared Plaintiff for working even eight
hours. (AR 301-02, 316-17, 417-19.) In Garrison v. Aetna Life Ins. Co., the Eastern District of
California held that the defendant insurance company abused its discretion in determining that the
plaintiff could work at her own occupation, in part, because the insurer "failed to consider and did
not even refer to the discrepancy between [the plaintiff's] usual hours and the eight hour restriction
placed on [the plaintiff's] work day." 558 F. Supp. 2d 995, 1006 (C.D. Cal. 2008). That court
emphasized that the insurer "simply noted that [the plaintiff] could work in a 'sedentary physical
demand level' for an eight hour day based on the [medical evidence], and summarily concluded
that [the plaintiff]'s medical condition would not prevent her from performing her own occupation."
Id.; see also Rosenthal v. Long-Term Disability Plan of Epstein, Becker & Green, P.C., No. CV 9804246 GAF, 1999 WL 1567863, at *8-11 (C.D. Cal. Dec. 21, 1999) (finding an abuse of discretion
where administrator terminated LTD benefits where the plaintiff could work 40 hours per week, but
where her own occupation as a trial attorney required her to work 40-70 hours per week); Faulkner
v. Hartford Life & Acc. Ins. Co., 860 F. Supp. 2d 1127, 1144 (E.D. Cal. 2012) (finding an abuse
of discretion where the administrator terminated LTD benefits because none of the plaintiff's
doctors cleared her for the 40 hour work week that was required of her own occupation). Thus,
in the present case, even assuming Plaintiff could perform sedentary work in the national
economy, he would be unable to perform such sedentary work for the number of hours required
of his occupation.
Defendant argues that despite Plaintiff's subjective complaints of pain, Plaintiff's ability to exercise
is well-documented in the Administrative Record. (Def.'s Responding Br. 9.) Defendant points
to a note in Plaintiff's file stating that Plaintiff "was asked to leave the bank in the Spring of 2011,
ostensibly because he was missing work due to self-care activities such as exercise." (AR 2797;
Def.'s Responding Br. 9.) Defendant appears to argue that Plaintiff is malingering because he was
capable of jogging three miles. (AR 700, 2805-06; Def.'s Responding Br. 9.) However, Plaintiff
claims that "[h]e tries to move around as much as possible so that his muscles keep moving, but
it is painful." (AR 1392.) This is consistent with Dr. Robb's statement that Plaintiff's symptoms are
"relieved by walking briskly [and] jogging . . . ." (AR 321.) Such exercise does not mean that
Plaintiff is able to perform his own occupation. After all, it is Plaintiff's inability to sit or stand for
long periods of time that is made difficult because of fibromyalgia and other
diseases—functionality required of Plaintiff in his own occupation. Furthermore, as indicated by
Dr. Tan and Dr. Lum, Plaintiff appears motivated to return to work (AR 302, 317), which is
consistent with his effort to exercise and lose weight. Plaintiff's motivation to return to work is
laudable and weighs against any kind of finding of malingering based on Plaintiff's efforts to
exercise. Accordingly, the Court finds that Plaintiff has established, by the preponderance of the
evidence, that he was totally disabled under the Policy.
3.

SSA Disability
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

The Court's analysis is further supported by the SSA's disability finding for Plaintiff. Although the
disability standards used by the SSA and the Policy are different,4 Plaintiff's entitlement to SSD
benefits still suggests that he suffers from some limitation on his ability to work. Thus, "although
this award does not constitute direct proof, it reinforces [Plaintiff's] showing that [he] had a
disability that could qualify [him] for benefits under [the Policy]." Schramm v. CNA Fin. Corp.
Insured Grp. Ben. Program, 718 F. Supp. 2d 1151, 1164-65 (N.D. Cal. 2010).
4.

Time Period of Plaintiff's Total Disability

The Policy provides that a claimant's disability ends on "[t]he date that [the claimant fails] to give
proof that [the claimant is] still disabled." (AR 52.) The Court finds that Plaintiff established that
he was "totally disabled" under the Policy for the 180-day waiting period between July 17, 2011,
and January 12, 2012. However, the latest indication from the Administrative Record that Plaintiff
was disabled is April 30, 2012, when Dr. Lum informed Defendant that Plaintiff was disabled and
unable to work. (AR 713.) Given that the Court is restricted to the Administrative Record, Court
is unable to determine whether Plaintiff was totally disabled after April 30, 2012.
Thus, while the Court finds that Defendant incorrectly denied Plaintiff his LTD benefits, Plaintiff has
met his burden of proving that he was totally disabled only between July 16, 2011, and April 30,
2012. The Court must remand to Defendant to decide whether Plaintiff was totally disabled
between April 30, 2012, and January 11, 2014, and if so, whether he was totally disabled
thereafter under the "any occupation" standard set forth in the Policy. See Nash v. Life Ins. Co.
of N. Am., No. CV 08-00893 WQH, 2010 WL 5139087, at *35 (S.D. Cal. Dec. 9, 2010) (ordering
retroactive disability benefits, but remanding to the defendant insurance company to decide
whether plaintiff was entitled to benefits under the "any occupation" standard because (1) the
defendant had not decided the plaintiff’s claim under that standard, (2) the administrative record
was not adequately developed on the issue, and (3) the court was not the proper forum to
consider the issue in the first instance).
///
///
B.

Judicial Estoppel

In addition to Plaintiff's case on the merits, Plaintiff argues that Defendant is judicially estopped
from asserting that Plaintiff is not totally disabled because "in the SSA proceedings [Plaintiff and
Defendant] established that [Plaintiff] cannot perform any job in the national economy." (Pl.'s
4

For SSD benefit determinations, the claimant's condition is measured against a uniform
set of federal criteria, whereas a disability determination under an ERISA plan usually turns
on the interpretation of the plan's terms. See Black & Decker, 538 U.S. at 833.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 13-01945 SJO (MRWx)

DATE: June 30, 2014

Opening Br. 18.) Judicial estoppel is an equitable doctrine invoked by a court at its discretion "to
protect the integrity of the judicial process by prohibiting parties from deliberately changing
positions according to the exigencies of the moment." New Hampshire v. Maine, 532 U.S. 742,
749-50 (2001) (internal quotation marks and citations omitted). Judicial estoppel prevents "a party
from gaining an advantage by asserting one position . . . and then later seeking an advantage by
taking a clearly inconsistent position." Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782
(9th Cir. 2001) (internal citations omitted).
However, the Court in not convinced that judicial estoppel applies in this case. Defendant was not
a party in the SSA proceedings and thus did not make any representations in that proceeding at
all. (See Def.'s Responding Br. 18.) Furthermore, courts have rejected applying judicial estoppel
to a defendant in an ERISA case to prevent that defendant from arguing that a claimant is not
totally disabled merely because of an SSA disability determination, even when the defendant
encourages the plaintiff to apply for SSD benefits. See Smith v. Hartford Life & Acc., No. C
11-03495 LB, 2013 WL 394185, at *26 (N.D. Cal. Jan. 30, 2013); Moskowite v. Everen Capital
Corp., No. C 03-04666 MMC, 2005 WL 1910941, at *4 (N.D. Cal. Aug. 10, 2005).
III.

RULING

The Court finds that under de novo review, Plaintiff established, by the preponderance of the
evidence, that he was "totally disabled" under the Policy between January 11, 2012, and at least
April 25, 2012. Thus, the Court awards Plaintiff retroactive LTD benefits from January 12, 2012,
through April 30, 2012. The Court further remands to Defendant to decide whether Plaintiff was
totally disabled under the "own occupation" standard between April 30, 2012, and January 11,
2014, and if so, whether he was totally disabled thereafter under the "any occupation" standard.
Plaintiff shall have until July 14, 2014, to submit a proposed judgment in accordance with this
order.
IT IS SO ORDERED.

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