Sandeep Hans v. Unum Life Insurance Company of America et al

Filing 61

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Andre Birotte Jr., that under de novo review, Plaintiff has not established, by the preponderance of the evidence, that he was disabled under the Policy. The Court therefore affirms the denial of Plaintiffs LTD benefits. Unum shall submit a proposed judgment no later than fourteen (14) days of the issuance of this decision. Once the proposed judgment is submitted, Plaintiff shall have five (5) days to file his objections. Each side is to bear their own costs. (jp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SANDEEP HANS,

Case No. CV 14-02760-AB (MRWx)

Plaintiff,

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v.

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

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UNUM LIFE INSURANCE
COMPANY; E & J GALLO WINERY
LONG TERM DISABILITY PLAN,

TRIAL DATE: APRIL 7, 2015

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Defendants.

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This Employment Retirement Income Security Act (“ERISA”) action concerns

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the termination of Plaintiff Sandeep Hans’s long-term disability (“LTD”) benefits and

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life waiver of premium (LWOP) benefits, pursuant to 29 U.S.C. § 1132 et seq. (See

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Complaint, Dkt. No. 1.) Plaintiff seeks to overturn the termination of his ERISA-

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governed benefit plans (collectively the “Policy”). Defendant Unum Life Insurance

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Co. (“Unum”), acting on behalf of Plaintiff’s former employer Defendant E & J Gallo

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Winery (“Gallo”) terminated Plaintiff’s disability benefits.

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On March 9, 2015, the Parties submitted Opening Briefs. (Plaintiff Brief

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(“PB”), Dkt. No. 45; Unum Brief (“UB”), Dkt. No. 46.) The Administrative Record

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(“AR”) was also submitted on March 9. (AR, Dkt. No. 44.) On March 23, 2015, the
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Parties submitted Responsive Briefs. (Plaintiff Response (“PR”), Dkt. No. 52; Unum

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Response (“UR”), Dkt. No. 53.) On March 31, the Parties submitted Findings of Fact

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and Conclusions of Law. (Unum (“UFL”), Dkt. No. 55; Plaintiff (“PFL”), Dkt. No.

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56.) The Court, sitting without a jury, commenced a bench trial on April 7, 2015.

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(Bench Trial, Dkt. No. 60.)

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Having heard oral argument and having considered the materials submitted by

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the Parties, the Court finds for Unum under the following findings of fact and

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conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

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I.

FINDINGS OF FACT1

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1.

This Court has jurisdiction of this ERISA matter pursuant to 29 U.S.C.

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§§ 1132(a), (e), (f), (g), and 28 U.S.C § 1331. The matter concerns a dispute over

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Plaintiff’s benefit plans.

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A. The Policy

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2.

On January 1, 2000, Unum, acting on behalf of Defendant E & J Gallo

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Winery, issued the Group LTD Policy Number 54954001 (the “LTD Policy”).2 On

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May 1, 2004, Unum amended the LTD Policy (amended as the “LTD Plan”). (AR 57-

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97.)

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3.

To qualify for benefits under the LTD Policy, Unum must determine that

you are disabled. To prove that you are disabled, one must prove:

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[Y]ou are limited from performing the material and substantial duties of your
regular occupation due to your sickness or injury; and

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[Y]ou have a 20% or more loss in your indexed monthly earnings due to the
same sickness or injury.

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All facts cited herein are taken from the AR unless otherwise noted. (See AR.) Any finding of fact
that constitutes a conclusion of law is hereby adopted as a conclusion of law, and any conclusion of
law that constitutes a finding of fact is hereby adopted as a finding of fact.

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The LTD Plan claim file is found at AR 1-5116, the Base Life Plan claim file is found at AR 51176317, and the Supplemental Life Plan claim file is found at AR 6318-6964. (PFL, pp. 1-2.)

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(AR 837.)
4.

The LTD Policy continues to note that

after twenty-four (24) months of payments, you are disabled when Unum
determines that due to the same sickness or injury, you are unable to perform
the duties of any gainful occupation for which you are reasonably fitted by
education, training or experience.

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(AR 837 (emphasis added).) “Gainful Occupation is one that within 12 months of

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your return to work is or can be expected to provide you with an income that is at least

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equal to 60% of your annual earnings in effect just before your date of disability

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began.” (AR 6315, 6962.)
5.

Unum will also evaluate the disability while one is working in another

occupation.

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After 24 months of payments, Unum defines Another Occupation as: You will
be determined to be disabled from another occupation when you are rendered
unable to engage with reasonable continuity in another occupation in which you
could reasonably be expected to perform satisfactorily in light of your age,
education, training, experience, station in life, physical and mental capacity.
(AR 837.)
6.

Unum will stop sending you disability payments and your claim will end

on the earliest of the following:

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 All full-time active salaried employees who: Are working at least 40 hours per
week; have one year or more of service with a covered employer; qualify for
sick leave; and are not covered under a collective bargaining agreement, All
full-time active salaried employees who: Are working at least 40 hours per
week; have less than one year of service with a covered employer; qualify for
sick leave; and are not covered under a collective bargaining agreement

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 During the first 24 months of payments, when you are able to work in your

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3.

regular occupation on a part-time basis but you choose not to;3

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 After 24 months of payments, when you are able to work in any gainful

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occupation on a part-time basis but you choose not to;

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 the end of the maximum period of payment;

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 the date you are no longer disabled under the terms of the plan;

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 the date you fail to submit proof of continuing disability;

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 the date your disability earnings exceed the amount allowable under the plan; or

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 the date you die.

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(AR 79-80, 837 (emphasis added).)

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Unum’s life insurance policies are Group Life Policies Number 549454

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002 with a benefit of $200,000 (“the Base Life Policy”) and Number 549454 002 with

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a benefit of $100,000 (“the Supplemental Life Policy”). (AR 6283-6317; 6919-6964.)

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8.

The Life Policies provide LWOP when an insured is disabled from any

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gainful occupation up to age 65. (AR 6302, 6945.) The Life Policies allow

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conversion of coverage within thirty-one (31) days after employment terminates. (AR

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6303-6307, 6946-6953.)

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B.

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Diagnosing Plaintiff
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From January 1999 to May 2002, Plaintiff worked as a computer

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programmer for Gallo. (AR 100, 121, 2809); (PFL ¶¶ 5-6.) The occupation of

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“programmer/analyst” is rated “sedentary” in physical strength demand. (UFL ¶ 21.)

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Plaintiff’s job duties as a programmer/analyst at Gallo required sitting 5 hours a day,

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standing 2 hours a day and walking 1 hour a day, lifting up to 20 pounds, and

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frequently lifting less than 10 pounds. (UFL ¶ 22.)

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10.

Plaintiff earned a yearly salary of $71,000 until the date of his disability,

May 8, 2002. (AR 11, 100, 349); (PFL ¶ 7.) Plaintiff’s disability symptoms consisted

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Part-time means the ability to work and earn 20% or more of your indexed monthly earnings.

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of vertigo, fatigue, memory and concentration complaints, anxiety and depression.

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(AR 2706-3205.)

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i.

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Dr. Donald Howe and Dr. C. Alan Yates’s Attempt To Diagnose Plaintiff
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On May 2, 2002, Dr. Donald Howe treated Plaintiff for stiffness and

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soreness on his neck, body fatigue, and forgetfulness leading to nervousness. (AR

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224); (PFL ¶ 10.) On May 7, 2002, Dr. Howe conducted an objective examination

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and a MRI on Plaintiff. (AR 229.) The results came back normal. (AR 173); (PFL ¶

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12.) Plaintiff was referred to a neurologist. (AR 229.) A neurological examination

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was taken and the results also came back normal. (AR 255-6.)

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12.

On May 20, 2002, Plaintiff returned back to Dr. Howe’s office to be

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examined by a nurse. (PB 2.) The nurse noted that Plaintiff’s symptoms were “bad

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enough that he is unable to work. He really wants to go back to work.” (AR 240.)

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The nurse referred Plaintiff to have a ear, nose, and throat consultation (ENT).

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Dr. C. Alan Yates is an ENT specialist. On May 29, 2002, Dr. Yates

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examined Plaintiff using an audiogram. The results showed that Plaintiff had mild

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hearing loss. (AR 280.)

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On June 20, 2002, Dr. Howe completed Unum’s Attending Physician

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Statement. (PB 3.) Due to Plaintiff’s symptoms of dizziness, pain, and fatigue, Dr.

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Howe opined that Plaintiff was totally disabled. (AR 102.) The diagnosis confirmed

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Plaintiff’s vertigo, otitis media (ear infection), and fatigue symptoms. (AR 102.) Dr.

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Howe stated Plaintiff could return back to full-time work by July 1, 2002. (Id.)

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15.

On June 28, 2002, Plaintiff returned back to Dr. Howe. (AR 193.) Due

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to Plaintiff’s symptoms, Dr. Howe ordered Plaintiff to remain off work until August 1,

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2002. (AR 199.)

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In July 3, 2002, a bilateral carotid artery color doppler sonography came

back normal. (AR 167.)4
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Dr. Kevin Mckennan is also a physician who assisted Dr. Howe in evaluating Plaintiff. (AR 192.)
Plaintiff’s insurance did not approve the consultation with Dr. McKennan, so Plaintiff elected to pay

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ii.

Dr. Russell Porter (Primary Physician) Begins to Treat Plaintiff and

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Plaintiff Seeks Treatment in India

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On October 25, 2002, Plaintiff began treating with Dr. Russell Porter,

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another physician in Dr. Howe’s office. (AR 2928); (PFL ¶ 51.) Plaintiff informed

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Dr. Porter he was ready to return back to work. (Id.) Dr. Porter cleared Plaintiff to

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return back to work on November 1, 2002, and Plaintiff began working again on that

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day. (Id.) However, because of his symptoms, Plaintiff stopped working on

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November 7, 2002. (AR 384.)

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Because Plaintiff’s symptoms continued to persist, Plaintiff sought

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treatment in India from November 18, 2002 to January 31, 2003. (AR 383.) Dr.

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Ramakant Jagpal certified Plaintiff’s need for rest during that period. (Id.)

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Subsequently, Plaintiff returned to the U.S. and resumed treatment with Dr. Porter in

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June 2003. (AR 617-618.)

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iii.

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Dr. James Wakefield’s Psychological Testing
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To ensure that Plaintiff’s symptoms were not cognitive, on August 11,

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2003, Dr. James Wakefield conducted a psycho-diagnostic evaluation. (AR 1340.)

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Dr. Wakefield pointed to Plaintiff’s difficulty in performing minimal activities

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including driving his son to school, walking the dog, helping his son study, and

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watching his children play. (AR 1340.) Dr. Wakefield continued to opine about

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Plaintiff’s mood being “frustrated” because of his condition and inability to work.

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(AR 1341.) The results showed Plaintiff’s intellectual ability to be in the average

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percentile. (AR 1343.)

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After receiving results from the evaluation, Dr. Porter still found little

explanation for Plaintiff’s symptoms. Dr. Porter noted that anti-depressants were

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cash in order to get another opinion in the hope of finding the cause of his symptoms. (PFL ¶ 37.)
Dr. Mckennan conducted a few neurological exams and could not find evidence of serious
pathology. (AR 322.) Dr. McKennan concluded “[t]here is not much we can do to alleviate the
symptoms.” (PFL ¶ 46.)

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going to be prescribed to rule out somatization, which is a chronic disorder where

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psychological distress produces physical symptoms. 5,6 (AR 494); (PFL ¶¶ 76-77.)

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iv.

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The Social Security Administration’s Finding that Plaintiff is Disabled
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On March 1, 2004, the Social Security Administration (“SSA”)

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determined Plaintiff had been disabled since May 7, 2002. (AR 564.) Dr. Susan

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Regan reviewed Plaintiff’s medical records and concluded that Plaintiff suffered a loss

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in intellectual abilities. (AR 3008.) She also reviewed Dr. Wakefield’s tests and

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concurred with his results. (Id.) The SSA medical consultant, Dr. Howard Crutcher,

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agreed with Dr. Regan’s assessment.7 (AR 3109.)

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C. Plaintiff is Diagnosed with Chronic Fatigue Syndrome (CFS) and Unum

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Determines Plaintiff is Disabled

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22.

On October 1, 2004, Dr. Porter diagnosed Plaintiff with “chronic

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vertigo, and [CFS].”8 (AR 675.) After the diagnosis, Plaintiff filed a claim with

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Unum but was initially denied because his claim file only consisted of subjective

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complaints. (AR 2486.) Plaintiff and his attorney supplemented his claim with

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various specialists’ opinions and evaluations. 9, 10

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There is evidence within the Administrative Record that Plaintiff ignored using this prescribed
medication. (AR 4366-4367.)

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See MEDLINE PLUS, National Institute of Health,
http://nlm.nih.gov/medlineplus/ency/article/000955.html (last visited April 4, 2015).

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In 2006, the SSA began to reassess Plaintiff’s disability claim. (AR 2732); (PFL ¶ 104.) On May 9,
2007, the Social Security Administration’s C.H. Dudley, M.D. reviewed all of Plaintiff’s medical
information. (AR 2711, 3129); (PFL ¶ 111.) Dr. Dudley found that Plaintiff was unable to shop,
mow lawns, or take long drives. (AR 3129.) Because Plaintiff had experienced “no significant
medical improvement,” Dr. Dudley recertified disability. (Id.); (PFL ¶ 112.)

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The reason Plaintiff took a litany of tests to rule out other possible diagnoses is because of the lack
of objective testing that can diagnose CFS. Solomaa v. Honda Long Term Disability Plan, 642 F.3d
666, 675 (9th Cir. 2011). Thus, procedures of ruling out other potential ailments (as done here) are
the key indicators of identifying CFS. Id.
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In 2006, the SSA began to reassess Plaintiff’s disability claim. (AR 2732-39, 1740-47.) On behalf
of SSA, Dr. C.H. Dudley reviewed the updated information provided to them and concluded that

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On May 9, 2007, Unum reassessed Plaintiff’s claim and concurred that

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Plaintiff suffered from CFS. (AR 2486.) After completing the review of the file,

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Unum sent a letter to Plaintiff to confirm Plaintiff’s disability as of May 8, 2002

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thereby retroactively awarding him disability benefits as of that date. (AR 837.)

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D. Unum’s Initial Medical Review

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24.

As part of Unum’s ongoing handling of the claim, it requested an update

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on Plaintiff’s medical status to determine if he remained eligible for continued

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benefits under the Plan’s provisions. (AR 838); (PFL ¶ 123.)

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25.

In the Claimant’s Statement Plaintiff completed on July 8, 2008, he

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described his present activities: “On better (good) days  drop off/pick up kids from

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school, go to stores with spouse/dad. Help kids with homework, baby sit youngest son

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when feeling better, walk outside in evening/play with kids in front of house in

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evening.” (AR 2599); (PFL ¶ 130.)

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In June 2009, Unum “determined that we need updated certification of

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your continued disability.” (AR 2608); (PFL ¶ 133.) Plaintiff provided all requested

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information. (AR 2613-19.)

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27.

In the forms Unum provided, Plaintiff described his current day-to-day

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activities as “[o]n better days, drop off kids/pick up kids from school, go to shopping

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with Dad. Help kids with homework, babysit the youngest son, take kids to park,

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evening walk, sit/play with kids outside of house in evening.” (AR 2614); (PFL ¶

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134.)

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28.

In 2011, Unum began investigating Plaintiff’s ongoing entitlement to

LTD/LWOP. (AR 2673, 2687, 3216.) The investigation first focused on Plaintiff’s

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Plaintiff suffered from CFS and recertified their previous finding of disability. (AR 2714.)
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Plaintiff was referred to other physicians in order to confirm the diagnosis. Dr. Roger Morrison,
homeopathic medicine physician, and Dr. Gregory Melcher, assistant professor at U.C. Davis
Department of Internal Medicine, also concluded that Plaintiff suffered from CFS. (AR 684, 1154,
1168.)

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depression and anxiety symptoms that was opined in Dr. Porter’s reports. 11 (AR

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3216.)

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29.

On December 1, 2011, Plaintiff confirmed that in 2008 or 2009 he was

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referred to Dr. Epperson for a psychiatric evaluation during his divorce. 12 (AR 3225-

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26.) Unum claims that it attempted to follow up on Dr. Epperson’s evaluation, but

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Plaintiff’s attorney blocked Unum’s investigation. (AR 3229-31, 3237-39, 3255-56,

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3231.)

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30.

Between July 2008 to August 2011, Dr. Porter filled out Attending

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Physician Statements (“APS”) in order to provide Unum with Plaintiff’s updated

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health information. (AR 2601, 2617, 2641, 2648.) The APS stated the following:

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 On July 2, 2008, Dr. Porter reported that the primary diagnosis was CFS and
secondary diagnosis of vertigo. (AR 2601-02.)

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 On July 15, 2009, Dr. Porter’s diagnosis did not change. Dr. Porter opined that
Plaintiff was able to sit frequently (34%-66%) and stand/walk occasionally (133%). (AR 2617.)

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 On July 26, 2011, Dr. Porter’s diagnosis and opinion did not change from July
2009. (AR 2641.)

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 August 31, 2011, Unum requested copies of Plaintiff’s medical records. (AR
2648.) Dr. Porter faxed treatment notes from December 2010 and July 2011.

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(Id.)

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31.

On September 7, 2011, Unum called Plaintiff to discuss his claim. (AR

2665.) According to Plaintiff, he was able to cook dinner or take care of kids by
transporting them to and from school on good days. (AR 2636-2640; 2666.) Plaintiff

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LTD benefits for disabilities due to mental illness are limited to twenty-four (24) months (“M&N
Limitation”). (AR 80-81.)

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Within the AR, there are statements alluding to Plaintiff’s wife poisoning him with arsenic. (AR
4830, 4833.)

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informed Unum that he was seeing Dr. Porter every six (6) months and he expressed

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his desire to return back to work one day. (Id.)

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32.

determined that Plaintiff could perform sedentary work. (AR 2673.)

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Based on Dr. Porter’s APS above, on September 19, 2011, Unum

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The following Unum physician reviews were conducted in 2012 while

Unum was still paying Plaintiff’s disability benefits.
i.

Dr. Peter Gannon’s Independent Medical Examination
34.

Dr. Peter Gannon, M.D., is board-certified in neurology and internal

medicine. (AR 3296-3297, 4338-4378.) In March 2012, Unum sent over Plaintiff’s

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medical records. (AR 4365-4378.) On March 12, 2012, Dr. Gannon conducted an in-

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person Independent Medical Examination (“IME”) of Plaintiff. (Id.)

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35.

In his March 15, 2012 report, Dr. Gannon concluded that Plaintiff did not

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suffer from vestibular disorder. (Id.) Plaintiff’s physical and mental status exams all

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came back normal. (AR 4368 (noting that Plaintiff scored a 30 out of 30 on a mini-

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mental exam).) Based on Plaintiff’s medical records, lab studies, MRIs, blood tests,

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etc., Dr. Gannon found no neurological disease or restrictions and limitations. (AR

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4369 (“I am unable to find [any] objective evidence of any neurologic disease which

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has resulted in disability.”).) However, Dr. Gannon was aware that Plaintiff “has

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marked difficulty concentrating on anything for more than a short period of time.”

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(AR 4366); (PFL ¶ 171.)

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36.

Dr. Gannon noted that Plaintiff had not been on any medication for

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several years, contrary to Dr. Porter’s anti-depressant prescriptions. (Id.) Dr. Gannon

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also opined that Plaintiff “certainly...has multiple chronic symptoms,” which might be

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caused by depression. (AR 4369); (PFL ¶ 169.)

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37.

Unum sent Dr. Gannon’s report to Dr. Porter and requested Dr. Porter

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send updated records. (AR 4401-4402.) Dr. Porter sent Unum an office visit note that

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indicated that Plaintiff was having good and bad days with regard to his chronic

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fatigue problems. (AR 4406.) Dr. Porter expected Plaintiff to be a year away from

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full recovery. (Id.)

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38.

Unum forwarded the updates to Dr. Gannon, but the new information did

not change his position. (UFL ¶ 90); (AR 4416, 4423-4424.)
ii.

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Dr. Larry LaClair
39.

Unum’s on-site physician, Dr. Larry LaClair, a board certified family

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medicine physician, also reviewed Plaintiff’s records. (AR 4453-63; 4465-4474.) In

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June 2012, Dr. LaClair reported that Plaintiff’s vestibular neuritis improved. (AR

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4472.) Dr. LaClair concluded that Plaintiff was able to sit frequently and stand/walk

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occasionally. (AR 4462); (PFL ¶ 178.) Dr. LaClair attempted to discuss Plaintiff’s

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condition with Dr. Porter, but Dr. Porter did not respond. (AR 4445-4447.)

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According to Dr. LaClair, Plaintiff had full time functional capacity and he agreed

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with Dr. Gannon’s assessment. (AR 4474.)

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40.

Dr. LaClair noticed that Plaintiff’s CFS and depression and anxiety had

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serious overlap. (Id.) Dr. LaClair wanted to examine more thoroughly Plaintiff’s

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mental condition, but Plaintiff’s counsel has refused to produce Dr. Epperson’s

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evaluation.

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iii.

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Dr. Malcolm Spica
41.

Dr. Malcolm Spica is Unum’s on-site clinical neuropsychologist and

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licensed clinical psychologist. (AR 4483-4487.) On July 11, 2012, Dr. Spica

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reviewed Plaintiff’s medical records and concluded that Plaintiff did not suffer from

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any neurocognitive restrictions and limitations from 2002 to the date of the review.

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(Id.) He stated that Dr. Wakefield’s testing indicated normal cognitive performance

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and Dr. Regan’s opinions were purely based on Plaintiff’s subjective complaints. (Id.)

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Dr. Spica also stated that Dr. Epperson’s psychological evaluation of Plaintiff would

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have been helpful. (Id.)

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iv.

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Dr. Joseph Sentef
42.

On July 16, 2012, Unum referred Plaintiff’s medical file to Dr. Joseph

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Sentef, M.D., board certified family and occupational medicine physician. (AR 4488-

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4493.) Dr. Sentef concluded that Plaintiff’s activities—regularly exercising, driving,

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actively studying and playing with his children—were inconsistent with impairing

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fatigue. (Id.) He determined that CFS cannot be found under these circumstances.

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(Id.) Reviewing Dr. Porter and Dr. Gannon’s reports, Dr. Sentef opined that Plaintiff

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had full-time light work capacity. (Id.)

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v.

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Unum’s Vocational Analysis
43.

On July 24, 2012, Unum conducted a vocational analysis of Plaintiff.

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(AR 4436; 4501-4505.) Considering the skills, abilities, education, work history, and

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medical history of Plaintiff, Unum concluded that Plaintiff has the functional ability to

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work at different suitable gainful occupations such as Computer Sales Representative,

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Auditor, Statistical Analyst, and a Manager of Merchandise.13 (Id.) All the positions

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were either sedentary or light work positions because of Plaintiff’s medical history.

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(Id.) The vocational report also opined that the alternative positions would require

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vocational adjustment of two (2) years. (AR 4504.)

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44.

The vocational analysis expressly stated that “[n]o special training,

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licensure or certification would be needed for the vocational alternatives.” The

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vocational consultant confirmed that these occupations were available in Plaintiff’s

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geographical area of Modesto and that they are performed with “occasional exertion

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up to 10 lbs and 20 lbs of force, frequent sitting with occasional stand/walk and climb

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stairs, kneel, bend/twist/stoop.” (UFL ¶ 102.) It was also noted that the examples

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were not a complete list of occupations Plaintiff could perform. (Id.) The vocational

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Plaintiff has a bachelors and master’s degree in computer science. (AR 122, 1340); (PFL ¶ 1.)
These alternative positions reflect Plaintiff’s educational background.

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consultant confirmed that the alternatives would allow Plaintiff to demonstrate a level

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of skills and achievement consistent with pre-disability work. (Id.)

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E.

Unum’s Denial of Plaintiff’s Benefits and Plaintiff’s Appeal

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45.

On July 31, 2012, Unum terminated Plaintiff’s LTD benefits. (AR 4517-

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4526.) On August 2, 2012, Unum terminated Plaintiff’s LWOP benefits. (AR 6127-

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6132.) Based on the medical and vocational evidence above, Unum concluded that

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Plaintiff was no longer disabled in accordance with its LTD and Life Policies. (AR

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4510, 4512.) Unum determined that Plaintiff’s symptoms did not prevent him from

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working. (AR 4518, 4530.)

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46.

In March 2013, Plaintiff appealed Unum’s decision with an updated

record from Dr. Porter. (AR 4799; 4987-5003); (PFL ¶¶ 195-196.)
47.

The updated record included Dr. Porter’s Chronic Fatigue Syndrome

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Residual Functional Capacity Questionnaire which confirmed the existence of

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Plaintiff’s previous symptoms. (AR 4851-52.) Among the other assessments that

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were inconsistent with a return to work, Dr. Porter opined that Plaintiff needed 20-30

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minute breaks every hour (4853) and would be absent from work more than four days

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per month (4854). (PFL ¶ 205.)

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48.

In consideration of the administrative record and the examinations of the

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physicians below, Unum upheld its termination decision under the LTD Policy and

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Life Policies.

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49.

Unum communicated the denials to Plaintiff on June 20, 2013. (AR

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5044-5056, 6259-6271, 6898-6910.) Unum explained the basis for its decision in a

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letter detailing that Plaintiff did not have physical restrictions and limitations

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precluding work in other gainful occupations. (UFL ¶ 119.) Unum explained that

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Plaintiff’s conditions, collectively and individually, did not indicate he was precluded

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from engaging with reasonable continuity in the alternative gainful occupations

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previously identified by Unum’s vocational staff. (Id.) Unum distinguished the SSA

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award, refuting the CFS diagnosis in light of several co-morbid conditions and
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Plaintiff’s inconsistent reporting of substance abuse, and also noting that Unum had

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more current information.14 (Id.)

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50.

In upholding its decision, Unum considered the Dr. Porter’s updated

opinions and the additional medical reviews below. (Id.)

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i.

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Cardiopulmonary Exercise Test
51.

Plaintiff produced a cardiopulmonary exercise testing (CPET) report15

7

which is an exam he took in February 2013. (AR 4855-66);(PFL ¶ 208.) The testing

8

is designed to determine whether Plaintiff’s subjective complaints of fatigue are

9

consistent with observable signs of physical impairment. (AR 4861);(PFL ¶ 210.)

10

52.

Plaintiff’s CPET results were primarily based on self-report. (UFL ¶

11

113; (AR 4856-5857, 4860, 4866.) The testing was designed to determine whether

12

Plaintiff’s subjective complaints of fatigue were consistent with observable signs of

13

physical impairment. (PFL ¶ 210.)

14

53.

The two-day exercise test determined that Plaintiff is “severely limited in

15

his ability to engage in normal activities of daily living and [should be] [precluded]

16

from full-time work of even a sedentary/stationary nature.” (AR 4855); (PFL ¶ 212.)

17
18

54.

The letter upholding the termination of Plaintiff’s benefits does not

reflect Unum addressing the CPET findings in substantial detail. (PFL ¶ 228.)

19
20
14

21
22
23

“By the time Unum upheld the final appeal, Plaintiff had reported improvement, resumed driving,
took his kids to/from school, gymnastics and karate, helped with homework, rode bikes, watched
television and movies, used a computer, went shopping, played with them, went on evening walks,
did sit ups, and sat outside in evenings. He cared for himself and did not need assistance with ADLs.
Plaintiff had resumed cooking and caring for his kids.” (UFL ¶ 122 (citing AR 2614, 2636, 2658,
2665-2666).)

24
15

25
26
27

According to Plaintiff and the Workwell Foundation, “CPET is considered the gold standard for
measuring and evaluating functional capacity and fatigue. Position statements and/or guidelines for
the performance of this testing are available from the American College of Sports Medicine,
American Heart Association, American College of Chest Physicians, American Thoracic Society
and the American Medical Association, among others.” (AR 4856); (PFL ¶ 211.)

28
14.

1

ii.

2

Dr. Porter’s August 2012 Medical Reports
55.

On August 7, 2012, after Plaintiff mentioned that his benefits were

3

terminated, Dr. Porter encouraged Plaintiff to “re-engag[e] the workforce and see if

4

[Plaintiff] does not get back to his normal self.” (AR 4844.)

5

56.

The next day Dr. Porter completed a Chronic Fatigue Syndrome Residual

6

Functional Capacity Questionnaire. (AR 4851-54); (PFL ¶ 201.) There, Dr. Porter

7

confirmed the presence of CFS symptoms, opined that Plaintiff could sit for 2 hours at

8

a time for a total of about 4 hours in a day, and opined that Plaintiff was limited to

9

standing about 15 minutes at a time for a total of less than 2 hours in a day. (AR 4851-

10

4853); (PFL ¶¶ 202-203.)

11

iii.

12

Dr. Jana Zimmerman
57.

In May 2013, Dr. Jana Zimmerman, a licensed psychologist, reviewed

13

Plaintiff’s records and concluded that cognitive deficits from a non-behavioral health

14

condition were not supported. (AR 5010-5019); (UFL ¶ 115.)

15

58.

Dr. Zimmerman noted that many of Plaintiff’s symptoms may be

16

derivative of his history of substance abuse. (AR 5010-5019.) Dr. Zimmerman

17

attributes a majority of Plaintiff’s symptoms to his drinking habits. (Id.) According

18

to Dr. Zimmerman, Plaintiff had been drinking 3-4 whiskeys daily for 2 years. (Id.)

19

The pattern of alcohol intake met the diagnostic criteria for alcohol abuse if not

20

dependence, which is often associated with his symptoms. (UFL ¶ 115.) Dr.

21

Zimmerman also noted that Plaintiff’s memory and concentration complaints followed

22

drinking heavy enough to cause a hangover the next day. (Id.)

23

iv.

24

Dr. Scott B. Norris
59.

In May 2013, Unum physician, Dr. Scott B. Norris, also reviewed

25

Plaintiff’s records and agreed that Plaintiff did not meet the criteria for CFS. (AR

26

5020-5029); (UFL ¶ 117.)

27
28

60.

Specifically, Dr. Norris stated “[w]ith a reasonable degree of medical

certainty, I find that the medical evidence supports that the insured had the physical
15.

1

capacity, as of 7/30/12 forward, to perform sustain, full-time (40 hours/week) ‘Light’

2

occupational activity . . . .” (AR 5025.)

3

v.

4

Plaintiff Brings this Federal Action
61.

As a result of Unum’s final ruling, Plaintiff commenced this action on

5

April 10, 2014. (See Compl.)

6

II.

7

CONCLUSIONS OF LAW
1.

The Court conducts a bench trial on the record, 16 evaluating the

8

persuasiveness of the arguments and deciding which is more likely true. Kearney v.

9

Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999). A court reviews a plan

10

administrator’s decision de novo “unless the benefit plan gives the administrator or

11

fiduciary discretionary authority to determine eligibility for benefits;” if the plan does

12

grant such discretionary authority, the Court reviews the administrator’s decision for

13

abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115,

14

109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Salomaa v. Honda Long Term Disability

15

Plan, 637 F.3d 958, 965 (9th Cir. 2011).

16
17

2.

novo standard of review. (Dkt. No. 31.)

18
19

On September 16, 2014, the Court granted the Parties’ stipulation for a de

3.

Under the de novo standard of review, the Court gives no deference to

Unum’s decision in terminating Plaintiff’s benefits. Muniz v. AMEC Constr. Mgmt.,

20
21
22
23
24
25
26
27
28

16

On March 23, 2015, Unum filed a Motion to Strike Plaintiff’s Extrinsic Evidence. (Dkt. No. 54.)
Plaintiff filed an Opposition. (Dkt. No. 57.) Unum filed a Reply. (Dkt. No. 59.) The Motion
moves to strike Plaintiff’s Exhibit, (Dkt. No. 45, Ex. B), which is a “Unum Estimated Abilities
Form.” The Ninth Circuit has emphasized that a district court should exercise discretion before
considering extrinsic evidence and considering extrinsic evidence is permitted only when such
evidence is necessary to conduct an adequate review of the benefit decision. Opeta v. Nw. Airlines
Pension Plan for Contract Employees, 484 F.3d 1211, 1217 (9th Cir. 2007) (citation omitted). The
Policy term and the definition at issue is sedentary work. In order to properly review the Policy
decision, the Court finds it necessary to examine the Plaintiff’s Exhibit, (Dkt. No. 45, Ex. B).
However, the Court also examines Unum’s exhibit, Norma Parras’s Declaration, (Dkt. No. 59-1), to
properly interpret this plan term from two different perspectives. The Court therefore DENIES
Unum’s Motion and considers this extrinsic evidence because this evidence is necessary “regarding
[the] interpretation of the terms of the plan . . . .” Id.

16.

1

623 F.3d 1290, 1295-96 (9th Cir. 2010) (“When conducting a de novo review of the

2

record, the court does not give deference to the claim administrator’s decision, but

3

rather determines in the first instance if the claimant has adequately established that he

4

or she is disabled under the terms of the plan.”).

5

4.

A plan administrator like Unum must adequately explain the reasons for

6

the denial of benefits, or in this case, the reversal of benefits previously provided. See

7

29 U.S.C. § 1133 (“every employee benefit plan shall . . . provide adequate notice in

8

writing to any participant or beneficiary whose claim for benefits under the plan has

9

been denied, setting forth the specific reasons for such denial, written in a manner

10

calculated to be understood by the participant”); see also 29 C.F.R. § 2560.503–

11

1(h)(2)(iv) (providing that “claims procedures [must] [p]rovide for a review that takes

12

into account all comments, documents, records, and other information submitted by

13

the claimant relating to the claim, without regard to whether such information was

14

submitted or considered in the initial benefit determination”).

15

5.

“When an administrator tacks on a new reason for denying benefits in a

16

final decision, thereby precluding the plan participant from responding to that

17

rationale for denial at the administrative level, the administrator violates ERISA’s

18

procedures.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974 (9th Cir. 2006).

19

But, “[i]n an ERISA case involving de novo review, the plaintiff has the burden of

20

showing entitlement to benefits.” See Schramm v. CAN Fin. Corp. Insured Grp. Ben.

21

Program, 718 F. Supp. 2d 1151, 1162 (N.D. Cal. 2010); see also Muniz v. AMEC

22

Constr. Mgmt., No. CV-07-8066 CAS (AJWx), 2009 WL 866843, at *5 (C.D. Cal.

23

2009) (“The parties dispute which party bears the burden of proof in this case.

24

Generally, a plaintiff suing for benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B),

25

must establish his entitlement to benefits.” citing Farley v. Benefit Trust Life Ins.

26

Co., 979 F.2d 653, 658 (8th Cir. 1992)).

27
28

6.

The Court analyzes the record anew and “evaluate[s] the persuasiveness

of conflicting testimony and decides which is more likely true.” Kearney, 175 F.3d at
17.

1

195. The review is limited to the evidence in the administrative record unless it

2

necessary to consider extrinsic evidence outside of the record. Opeta v. Nw. Airlines

3

Pension Plan for Contract Employees, 484 F.3d 1211, 1217 (9th Cir. 2007).

4
5
6

A. Discussion
The policy places the burden on Plaintiff to qualify for benefits. To prove that
you are disabled, one must prove:

7

[Y]ou are limited from performing the material and substantial duties of your

8

regular occupation due to your sickness or injury; and

9

[Y]ou have a 20% or more loss in your indexed monthly earnings due to the

10

same sickness or injury.

11

(AR 837.) In reviewing the Administrative Record and the Parties’ contentions,

12

Plaintiff has not satisfied his burden to establish that he was disabled throughout the

13

relevant time period. As a preliminary matter, the Court finds it necessary to shed

14

light on the difficulties of assessing ERISA cases involving CFS.

15

i.

Chronic Fatigue Syndrome

16

CFS is a subject of discussion and debate within this district. Holifield v.

17

UNUM Life Ins. Co. of America, 640 F.Supp.2d 1224 (C.D. Cal. 2009) (ruling against

18

the plaintiff when considering her CFS diagnosis); Whealen v. Hartford Life and Acc.

19

Ins. Co., No. CV06-4948PSG (PLAX), 2007 WL 1891175 (C.D. Cal. 2007) (holding

20

that the defendant abused its discretion in evaluating the plaintiff’s CFS); Salomaa v.

21

Honda Long Term Disability Plan, 542 F.Supp.2d 1068 (C.D. Cal. 2008) (affirming

22

the administrator’s denial of the plaintiff’s LTD benefits considering his CFS),

23

reversed and remanded en banc denied, 642 F.3d 666 (9th Cir. 2011) (holding

24

administrator abused its discretion in denying long-term benefits to claimant who

25

suffered from CFS). There is a “lively debate as to whether ‘there is a single cause or

26

many causes [of CFS] and whether the cause is physical or psychologic[al].”

27

Holifield, 640 F.Supp.2d at 1234 (citations omitted.). Irrespective of the CFS origins,

28

the Court recognizes that the very nature of CFS causes a person to experience
18.

1

extreme fluctuation in his or her symptoms. See Dr. Majid Ali, Chronic Fatigue

2

Syndrome, http://www.fibromyalgia-support.org/chronic-fatigue/cfs-definition.html

3

(last visited April 3, 2015) (“CFS is a progressive immune disorder which affects all

4

body organs and ecosystems.”). Understanding that CFS tends to either progress or

5

regress over time, the Court is very mindful of the demarcation between suffering

6

from CFS and CFS rendering one disabled. See Denmark v. Liberty Life Assurance

7

Co. of Boston, 481 F.3d 16, 37 (1st Cir. 2007) (highlighting the difference between

8

“requiring objective evidence of the diagnosis, which is impermissible for a

9

condition . . . that does not lend itself to objective verification, and requiring objective

10

evidence that the plaintiff is unable to work, which is allowed.”); Fitzpatrick v. Bayer

11

Corp., No. 04 Civ. 5134, 2008 WL 169318, at *11 (S.D.N.Y. 2008) (“[T]he operative

12

question in this case is not whether Plaintiff actually suffered from CFS and/or

13

fibromyalgia, but instead whether the Plaintiff’s CFS and/or fibromyalgia rendered

14

her ‘totally disabled’ . . . and thus unable to work.”).

15

Thus, the issue before the Court is whether Plaintiff’s medical condition and the

16

effect of that condition rendered him disabled within the definition of the Policy. The

17

Court next summarizes the Parties’ contentions.

18

ii.

Summary of the Parties’ Arguments

19

The Parties agree that Plaintiff was entitled to receive benefits from the Plans in

20

May 2007 (the date Unum retroactively approved Plaintiff’s benefits from May 2002)

21

up to May 2012, due to the symptoms associated with CFS. (AR 837, 2486.) This

22

means that Plaintiff was in fact disabled from May 2002 to July 2012 (termination of

23

LTD benefits) and August 2012 (termination of LWOP benefits). (AR 837); (AR

24

4517-4526); (AR 6127-6132.) The dispute arises from Unum’s termination of those

25

benefits.

26

According to Plaintiff, Unum cannot point to significant medical evidence that

27

suggests Plaintiff’s condition has improved warranting Unum to terminate his benefits.

28

(PB 19.) Plaintiff challenges Unum’s termination of his benefits because when Unum
19.

1

received Plaintiff’s updated medical records, Unum decided to continue Plaintiff’s

2

benefits. (PB 20.) The updated medical records included Dr. Porter’s July 2008,

3

2009, and 2011 APS reports where he informed Unum that Plaintiff was able to

4

frequently sit, occasionally stand, walk and lift/carry up to 20lbs. (AR 2601-02, 2617,

5

2641, 2648.) Plaintiff claims that these CFS symptoms did not change from July 2008

6

to August 2011 which means Unum must have relied on evidence that demonstrates a

7

significant improvement in Plaintiff’s condition in order to terminate his benefits. (PB

8

20.) But Plaintiff contends that the significant improvement is absent here. Plaintiff

9

points the Court to Dr. Porter’s medical evaluations and the CPET test which is the

10

test Plaintiff believes is the most important piece of evidence in evaluating Plaintiff’s

11

condition. According to Plaintiff, Unum ignored the CPET test and did not seriously

12

consider its findings before terminating Plaintiff’s LTD benefits. (PB 21.)

13

According to Unum, it relied on a significant improvement in Plaintiff’s

14

condition justifying termination of the Policy. (UB 19.) Unum contends that its

15

doctors reviewed Plaintiff’s claims and concluded that the medical record did not

16

support Plaintiff’s CFS diagnosis. (UB 20.) Particularly, Unum focuses on Dr.

17

Gannon who examined Plaintiff in-person and confirmed that Plaintiff had no

18

neurological condition or restrictions and limitations. (Id. at 22.) Moreover, Unum’s

19

vocational analysis concludes that Plaintiff could work in “other gainful occupations

20

including computer sales, IT auditor and systems analyst.” (Id. at 20.) Lastly, Unum

21

points out that the CPET is very inconsistent with the administrative record and

22

should not be relied upon as objective evidence. (UR 2.)

23

iii.

24

Plaintiff’s Condition Has Significantly Changed

Viewing the record through the lens of de novo review, the Court finds that

25

Plaintiff has significantly improved compared to when he was first diagnosed with

26

CFS.17

27
28

17

As a threshold matter, it is true that Unum may provide evidence to support its decision to
terminate Plaintiff’s benefits because it has approved Plaintiff’s benefits in the past. Schramm, 718

20.

1

The Court reminds Plaintiff “[t]hat a person has a true medical diagnosis does

2

not by itself establish disability . . . . Sometimes [peoples’] medical conditions are so

3

severe that they cannot work; sometimes people are able to work despite their

4

condition; and sometimes people work to distract themselves from their conditions.”

5

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

6

2004), overruled in part on other grounds, Abatie, 458 F.3d at 969 (9th Cir. 2006);

7

Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“The mere existence of an

8

impairment is insufficient proof of a disability. A claimant bears the burden of

9

proving that an impairment is disabling.”). In other words, the fact that Plaintiff has

10

CFS, on its own, does not mean that he is disabled. Instead, it is the presence of

11

ongoing disabling symptoms resulting from CFS that support the reversal of Unum’s

12

decision. Cf. Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 401 (5th

13

Cir. 2007) (finding administrator’s actions proper where it accepted diagnosis of

14

fibromyalgia, but did not accept claim of disabling effects of the condition).

15
16
17

The CFS diagnosis and the ongoing CFS symptoms are no longer present here
which evinces significant improvement.
Focusing on the diagnosis, there is a question as to whether Plaintiff’s

18

symptoms derive from CFS or Plaintiff’s mental health issues. It is difficult for health

19

care providers to diagnose CFS, as no specific laboratory tests or biomarkers exist.

20

Denmark, 481 F.3d at 37 (“[W]hile the diagnoses of chronic fatigue syndrome and

21

fibromyalgia may not lend themselves to objective clinical findings, the physical

22

limitations imposed by the symptoms of such illness do lend themselves to objective

23
24
25
26
27
28

F. Supp. 2d at 1164 (“Although Defendant did not need to prove a material improvement in
Plaintiff’s condition to defeat her entitlement to benefits, her lack of consistent, marked progress is
probative of her continuing disability.” (citing Saffon v. Wells Fargo & Co. Long Term Disability
Plan, 522 F.3d 863, 871 (9th Cir. 2008))). But paying benefits in the past does not operate as an
estoppel or transfer the burden of proof onto the insurer. Inciong v. Fort Dearborn Life Ins. Co.,
2014 WL 1599513 *2 (9th Cir. 2014) (unpublished) (affirming benefits denial after 15 years of
payments based on improved condition). And even if it did, the corresponding record satisfies that
very burden of significant improvement.

21.

1

analysis.” (quoting Boardman v. Prudential Ins. Co. of America, 337 F.3d 9, 17 n. 5

2

(1st Cir. 2003))). “Depression is often present as a secondary disorder in CFS

3

patients; when it appears to be present, the CDC recommends a referral to a mental

4

health professional.” Holifield, 640 F.Supp.2d at 1235 (citing CDC, “Treatment

5

Options,” http://www.cdc.gov/cfs/cfstreatment HCP.html). Here, Unum’s brief cites

6

to several events from Plaintiff’s past that question whether Plaintiff suffers from CFS

7

or depression. (AR 5010-5019.) The events include Plaintiff’s divorce, his history of

8

substance abuse in Dr. Zimmerman’s diagnosis, and there are also statements in the

9

record that allude to Plaintiff’s ex-wife allegedly poisoning him with arsenic. (Id.)

10

Under these circumstances, there is a possibility Plaintiff suffers from mental health

11

issues, including depression, in addition to CFS (or possibly, rather than CFS).

12

The Court understands that it is not in a position to firmly diagnose Plaintiff

13

with or without CFS. However, in looking at the record, the Court notices that several

14

physicians have concluded that Plaintiff may no longer have CFS. (AR 4471 (Dr.

15

LaClair stating that the absence of certain symptoms “indicates that if [Plaintiff] [had]

16

chronic fatigue syndrome between 2005-2007, it has improved and no longer meets

17

the 1994 CDC criteria for this condition.”); AR 5025-27 (Dr. Norris stating that “the

18

diagnosis of CFS is not supported as of 7/30/12.”).) That in of itself is an

19

improvement and a significant change from 2002 to 2008 when Plaintiff’s condition

20

was at its worst. During that period (2002 to 2008), Plaintiff’s physicians were

21

attempting to identify the cause of Plaintiff’s symptoms and Dr. Porter (Plaintiff’s

22

treating physician) ultimately diagnosed Plaintiff with “chronic vertigo, and [CFS]” in

23

2004, (AR 675), and Unum approved Plaintiff’s benefits in 2007. (AR 2486) Then

24

between 2008-2013, when Unum’s doctors began reviewing Plaintiff’s condition and

25

his past substance abuse, they began to question his overall diagnosis. (AR 4490-

26

4491 (in summarizing Plaintiff’s symptoms, Dr. Sentef states that “[Plaintiff] has

27

demonstrated fairly good activity and his symptoms do “not appear to be consistent

28

with CFS”); AR 5010-5019 (Dr. Zimmerman concluding that Plaintiff’s cognitive
22.

1

deficits are a result of his past substance abuse).) Because Plaintiff’s CFS diagnosis is

2

indiscernible by several physicians listed above, when in the past other physicians

3

concluded Plaintiff suffered from CFS, the Court finds that to be evidence of a

4

significant improvement. And even putting that aside, there are still grounds to find

5

for Unum when assessing Plaintiff’s symptoms.

6

During 2002 to 2008 (when Plaintiff’s condition was at its worst), Plaintiff had

7

extreme fatigue in performing daily chores like exercising or even driving his son to

8

school. (AR 2735 (in 2006, a function report Plaintiff filled out for the SSA in which

9

he indicated that he did not have physical strength to do chores around the house); AR

10

2737 (same report, Plaintiff indicating that he can watch movies in parts); AR 2743

11

(same function report stating on some days “[Plaintiff] can, for a short amount of time

12

[take] kids [to] school [which] is 3-4 blocks away. . . .”).) Plaintiff’s symptoms

13

consisted of vertigo, fatigue, memory and concentration complaints, anxiety and

14

depression. (AR 2706-3205.) Many physicians concurred that Plaintiff was suffering

15

tremendously from his ailment. For example, Dr. Howe opined that Plaintiff was

16

totally disabled due to Plaintiff’s symptoms of dizziness, pain, and fatigue. (AR 102.)

17

Dr. Yates reported that Plaintiff had hearing loss. (AR 280.) Dr. Regan found that

18

Plaintiff suffered a loss in intellectual abilities. (AR 3008.) And Dr. Porter also

19

concurred that Plaintiff symptoms were becoming increasingly burdensome to his

20

overall lifestyle and because Plaintiff’s testing for other illnesses came back negative,

21

Dr. Porter diagnosed Plaintiff with CFS in 2004. (AR 675.) Because Dr. Porter (for

22

example) is Plaintiff’s treating physician, his evaluations are generally entitled to

23

greater weight than that of the non-treating physician. See Murray v. Heckler, 722

24

F.2d 499, 501-502 (9th Cir. 1983). But, as the Ninth Circuit has explained in the

25

social security context, a physician’s (especially a treating physician) opinion may be

26

rejected “for ‘clear and convincing’ reasons supported by substantial evidence in the

27

record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Such reasons include

28

where an opinion is “in the form of a checklist, did not have supportive objective
23.

1

evidence, [or] was contradicted by other statements and assessments of [the patient]’s

2

medical condition.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th

3

Cir. 2004); see also Tuttle v. Standard Ins. Co., 459 F.Supp.2d 1063, 1072 (W.D.

4

Wash. 2006) (noting insurer “was not required to give special weight to [claimant’s]

5

treating physicians, particularly where their opinions were mere unsupported

6

conclusions”). Here, there are several indications of unreliability in the opinions

7

supporting Plaintiff’s position which justify Unum’s termination decision.

8

First, the symptoms described by Dr. Porter’s in the 2012 Residual Functional

9

Capacity Questionnaire differ from other evaluations in that same timeframe.18 (AR

10

4851-4852 (Residual Functional Capacity Questionnaire filled out in August 2012

11

diagnosing Plaintiff with CFS vertigo and using checked boxes to identify Plaintiff’s

12

symptoms as muscle pain and multiple joint pain)); cf. (AR 4845-4846 (Dr. Porter’s

13

June 2012 progress note that states that Plaintiff denies vertigo, joint pain, muscle

14

pain, joint swelling, and muscle cramps).) These contradictions (that are made several

15

months from each other) draw into question the reliability of Plaintiff’s symptoms.

16

Second, it is Dr. Porter who encouraged Plaintiff to reengage in the workforce. (AR

17

4844 (Dr. Porter stating that Plaintiff should “try to step up and work hard at getting

18

better, improving, [and] re-engag[e] the workforce and see if [Plaintiff] does not get

19

back to his normal self.”).) If Plaintiff’s treating physician is encouraging him to

20

return to work, then the Court questions why Plaintiff has not made any attempt to

21

engage back in the workforce. There is no evidence in the record that Plaintiff has

22

made any attempt to go back to work since 2002. A persuasive set of circumstances

23

would be for one to present evidence of an effort to reengage in the workforce and

24
25
26
27
28

18

It noteworthy to inform the Parties that the Court only looks to Plaintiff’s medical record that was
reviewed in terminating Plaintiff’s benefits. The entire record does provide context and perspective.
But it is what Plaintiff’s symptoms were at the time (June 2009, (AR 2608; PFL ¶ 133), and beyond)
Unum requested Plaintiff’s updated medical records and whether those updated medical records
were consistent with Plaintiff’s past symptoms that guide the Court’s decision here.

24.

1

then failing in that attempt due to a medical condition. It is an entirely different (and

2

unpersuasive) set of circumstances to present no evidence of an attempt to work again.

3

Moreover, the record and Unum’s physicians provide consistent findings that

4

Plaintiff did not continuously suffer from CFS symptoms which are known to be

5

disabling. The several doctors that reviewed Plaintiff’s medical file for Unum: Drs.

6

Gannon, Spica, LaClair, Sentef, Zimmerman, and Norris. They reviewed the

7

information in Plaintiff’s file, including Dr. Porter’s reports. (AR 4483-4487 (Dr.

8

Spica); AR 4453-63, 4465-4474 (Dr. LaClair; AR 4488-4493 (Dr. Sentef); AR 5010-

9

5019 (Dr. Zimmerman); AR 5020-5029 (Dr. Norris).) Dr. Gannon conducted an in-

10

person medical exam. (AR 4365-4378.) Dr. Gannon reviewed the file, conducted the

11

IME on Plaintiff, and found no objective evidence supporting a disability. (AR 4369

12

(“I am unable to find [any] objective evidence of any neurologic disease which has

13

resulted in disability.”).) This conclusion is similar to Unum’s other consulting

14

physicians that concluded that Plaintiff was not totally disabled and did not suffer

15

from CFS after reviewing the medical record. (AR 4471 (Dr. LaClair stating that

16

Plaintiff’s symptoms no longer meet CDC criteria); AR 5025-27 (Dr. Norris noting

17

that the CFS diagnosis is no longer present); (AR 4490-4491 (Dr. Sentef stating the

18

same).) Although Unum’s medical examiners ultimately contradicted Plaintiff’s

19

treating physicians and Plaintiff’s other medical support, Unum had every right to rely

20

on and give substantial weight to such opinions in making its final decision. Andrews

21

v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (“Where the opinion of the claimant’s

22

treating physician is contradicted, and the opinion of a nontreating source is based on

23

independent clinical findings that differ from those of the treating physician, the

24

opinion of the nontreating source may itself be substantial evidence; it is then solely

25

the province of the ALJ to resolve the conflict”); Saelee v. Chater, 94 F.3d 520, 522

26

(9th Cir. 1996) (per curium) (as amended) (holding that “the findings of a nontreating,

27

nonexamining physician can amount to substantial evidence, so long as other evidence

28

in the record supports those findings”); Hunt v. Metropolitan Life Insurance Company,
25.

1

425 F.3d 489, 490– 91 (8th Cir. 2005) (“Although we are mindful of [the plaintiff’s]

2

self- reported complaints of extreme tiredness, fatigue, mental confusion, loss of

3

memory, anxiety attacks, and depression, and the opinion of Hunt’s treating physician

4

that RLS has rendered her totally disabled, MetLife was nevertheless entitled to rely

5

on the opinions of two reviewing physicians who gave contrary opinions.”); see also

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Conti v. Equitable Life Ins. Assurance Society, 227 F.Supp.2d 282, 292 (D.N.J. 2002)

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(concluding that an insurer's decision to deny benefits was not an abuse of discretion

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where it elected to accept the opinion of the physician who performed an independent

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medical review rather than the reports of plaintiff's treating physicians); DiPietro v.

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Prudential Ins. Co. of America, No. 03 C 1018, 2004 WL 626818, at *6 (N.D. Ill.

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2004) (“Insurance providers are not required to seek independent medical evaluations,

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but an evaluation by the insurer is evidence of a thorough investigation into the

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claim”).

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It is also necessary to address Plaintiff’s contentions with respect to the CPET

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examination. Plaintiff asserts that he did provide Unum with an objective medical

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evaluation called the CPET which according to Plaintiff, Unum did not accord

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sufficient weight to the CPET results in its decision to uphold its termination decision.

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Plaintiff contends that Unum is required to consider the CPET examination in its

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appeal of Plaintiff’s benefits, and because the CPET test is hardly mentioned in the

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record, Plaintiff concludes that the CPET was not adequately considered in upholding

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the termination of Plaintiff’s benefits. It is true that Unum is required to give the

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CPET consideration in evaluating Plaintiff’s record, but that is exactly what happened

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here—the CPET was considered. (AR 4988 (a portion of Unum’s appeal file review

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stating “[i]n support of [Plaintiff’s] appeal, the attorney submitted . . . a 3/19/13

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‘Workwell Foundation Cardiopulmonary Exercise Test Evaluation Report’. . . .”); AR

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5024 (Unum’s appeal file review that outlines a timeline of events including the

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“[CPET] (two tests): 15 Watt/min bicycle ergometry w/ expired gas collection was

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performed; . . . ‘abnormal’ reduction in submaximal oxygen consumption between
26.

1

two tests noted . . . .”).) These CPET references in Unum’s appellate review were not

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overly elaborate nor did Unum fully explain its reasoning for disagreeing with the

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CPET results. But, there is no authority that Plaintiff points to that explicitly requires

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Unum to explain, point by point, why it disagreed with the CPET evaluations

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disagreements. Because the CPET is the so-called “gold standard” does not mean that

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Unum is somehow obligated to elaborate on what it believes is flawed with the CPET

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examination. Furthermore, in reviewing the record, such flaws are apparent for two

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major reasons. First, this evaluation was not conducted by a licensed physician, rather

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it is Plaintiff’s subjective complaints that the CPET relies upon. (AR 4856-5857,

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4860, 4866.) Plaintiff underwent a two-day exercise examination to which he, himself,

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recorded his results. (AR 4860 (“A post exercise test log was maintained by the

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patient.”); AR 4866 (an example of an exercise recovery questionnaire that Plaintiff

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filled out).) There is no indication that a physician was present nor is there anything

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in the record that suggests any physician (including Dr. Porter) supports the CPET’s

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findings. The Court sees no fault on the part of Unum for disagreeing with an

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examination this is primarily based on self-reporting. Second, the physical therapy

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evaluation included findings inconsistent with a finding of Dr. Porter’s prior

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evaluations. (AR 4840 (On a February 6, 2013 note, Dr. Porter stated “[Plaintiff] is

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instructed to exercise regularly.”); cf. (AR 4855 (CPET March 19, 2013 evaluation

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that concludes that based on the two-day exercise test, Plaintiff is “severely limited in

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his ability to engage in normal activities of daily living. . . .”).) In one particular

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month, if Dr. Porter’s medical evaluations are saying Plaintiff should exercise

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regularly, and the following month, the CPET results are saying Plaintiff is severely

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limited in his ability to engage everyday activities (which likely includes exercising),

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then the Court finds that such an inconsistency weighs heavily against the reliability

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Plaintiff’s medical evaluations. Ultimately, the Court believes Unum rationally found

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27.

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the CPET results incredible in speaking to the disabling effect CFS had on Plaintiff.19

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See, e.g., Lown v. Continental Casualty Co., 238 F.3d 543, 546 (4th Cir. 2001) (on de

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novo review, upholding the denial of benefits for disability based on chronic fatigue

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and pain notwithstanding the opinions of three treating physicians where the insurer

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“determined that [the claimant’s] documentation was inadequate to prove a total

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disability because of the lack of test results or other objective evidence to support the

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disability”).

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iv.

9

Plaintiff is Not Incapable from Working in a Gainful
Occupation

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The Administrative Record is clear that Unum’s primary reason for terminating

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Plaintiff’s benefits is because Unum disputes the impact CFS has on Plaintiff’s ability

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to perform sedentary work. The Court finds that the medical file supports Plaintiff’s

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ability to perform sedentary or light work.

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The Parties are in dispute as the amount of time in one workday sedentary

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occupations require one to sit. Plaintiff contends that Unum may have relied on (or at

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least was aware of) sedentary definition that is attached to a “Unum Estimated

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Abilities Form” in which the form explicitly defines sedentary work as sitting “6/8

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hours.” (Dkt. No. 45, Ex. B.) Unum and Dr. Porter determined that Plaintiff could sit

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“frequently” and stand/walk “occasionally.” (AR 4520.) According to Plaintiff’s

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exhibit, Unum defines Frequently sitting as the ability to sit somewhere in between

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The Court also wishes to address the SSA determination. Although the Parties spend little time
discussing the issue, the Court recognizes that Unum is not bound by the SSA’s determination and
Unum is not subject to the same standards applied to SSDI awards. See, e.g., Seleine v. Fluor Corp.
Long-Term Disability Plan, 598 F.Supp.2d 1090, 1104 (C.D. Cal. 2009) (“The Ninth Circuit has
long held, however, that an SSA award is not binding on an administrator.”) (citations omitted). Dr.
Reagan and Dr. Dudley may have determined Plaintiff to be disabled, but this determination does
not provide anything more than the conclusion that Plaintiff was disabled at the time of his
examination in 2004 and in 2007. (AR 2711, 3008, 3129.) There is nothing in the record that
suggests that the SSA reevaluated Plaintiff’s claim following these dates. Therefore, whether the
SSA found Plaintiff disabled in 2004 and in 2007 has no bearing on Unum’s determination that
Plaintiff was no longer disabled under the terms of the Policy.

28.

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34% (2.72) and 66% (5.28) hours in a work day, 8 hours. (Dkt. No. 45, Ex. B.) If

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5.28 hours is the maximum amount of time Plaintiff can frequently sit, then Plaintiff

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cannot perform sedentary work if Unum relied on this exhibit in making its decision

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to terminate Plaintiff’s benefits.20 Unum rejects the assertion that it relied on this

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definition in terminating Plaintiff’s benefits because the form is no longer in use.

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(Bench Trial, 3:11-15 (“[Plaintiff’s exhibit] was nothing Unum relied on or considered

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in adjudicating Mr. Sandeep Hans’s claim.”); 5:22-25 (“[T]hat form is no longer in

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use at Unum and it was not in use at the time of the vocational reviews that were done

9

in May and July of 2012.”).) Unum also contends sedentary work cannot be so easily

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quantified. More specifically, Unum attaches a declaration from a vocational

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rehabilitation consultant at Unum who elaborates on the uniform definition of

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sedentary work (if any). (Norma Parras Potenzo, Dkt. No. 59-1.) Ms. Potenzo states

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that the widely accepted vocational definition of sedentary work is consistent with

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Unum’s definition of frequent sitting. (Id. at ¶ 6 (“In conducting my analyses in

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Plaintiff’s claim, I followed the widely accepted vocational definition of “sedentary”

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work that generally requires the ability to sit frequently . . . .”).) In other words,

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sedentary requires one to sit between 2.72 hours to 5.28 hours, instead of the 6 hour

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minimum Plaintiff proposes. (Id.)

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The Court sees no reason to quantify the minimum amount of hours one is

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required to sit in order to perform sedentary work because the record demonstrates

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that Plaintiff can perform in such an environment. As noted above, it appears that

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Plaintiff has significantly improved in his average daily activities which supports the

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20

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28

Plaintiff cites numerous cases to support the uniform definition of sedentary work as having the
ability to sit six (6) hours within an eight (8) hour work day. See, e.g., Alfano v. Cigna Life Ins. Co.
of New York, 07 Civ. 9661 (GEL), 2009 WL 222351, at *18 (S.D.N.Y. 2009) (noting that a sitting
tolerance of “6 hours per day [is] generally recognized as the minimum tolerance required for
sedentary work” according to the Department of Labor); see also Perryman v. Provident Life &
Accident Ins. Co., 690 F. Supp. 2d 917, 948 (9th Cir. 2010) (elaborating on “sedentary work, as
defined by the [Department of Labor’s] Dictionary of Occupational Titles, ‘involves sitting most of
the time. . . .’”). None of these examples are in the ERISA context.

29.

1

proposition that Plaintiff is no longer disabled and ready to begin working again. As

2

noted in Dr. Sentef’s 2012 evaluation Plaintiff was improving and performing average

3

daily activities. (AR 4491 (Dr. Sentef noting that by 2011 Plaintiff was “able to

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participate in regular exercise” and that Plaintiff could “walk and ride bicycles daily”).)

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And these improvements were expected. (AR 4406 (2011 letter from Dr. Porter

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stating that “I do feel that [Plaintiff] is a year or so away from his maximum

7

recovery.”); AR 4851 (August 2012 Residual Functional Capacity Questionnaire to

8

which Dr. Porter states that Plaintiff’s fatigue “peaked in 2008” and is “slowly

9

improving” now.).) The Court believes that based on the number of household duties

10

Plaintiff currently performs coupled with the fact that Dr. Porter has encouraged him

11

to start working again, Plaintiff does have the ability to perform sedentary work. As

12

mentioned above, Plaintiff has not attempted to work at a another sedentary job since

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2002 during his time at Gallo. His improvement in household chores and overall

14

health signify that it is time for Plaintiff to extend his daily living abilities to a

15

sedentary work environment. Plaintiff should not avoid what is apparent—it is time

16

to “re-engag[e] the workforce.” (AR 4844.)

17

The record, the policy, and the Parties’ arguments do not support the assertion

18

that Plaintiff was disabled as of July 2012 (termination of LTD benefits) and August

19

2012 (termination of LWOP benefits). The Court therefore has no alternative other

20

than to affirm Unum’s decision to deny Plaintiff’s benefits.

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22

///

23

///

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///

25

///

26

///

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30.

1
2

III.

CONCLUSION

For the foregoing findings of fact and conclusions of law, the Court finds that

3

under de novo review, Plaintiff has not established, by the preponderance of the

4

evidence, that he was disabled under the Policy. The Court therefore affirms the

5

denial of Plaintiffs LTD benefits. Unum shall submit a proposed judgment no later

6

than fourteen (14) days of the issuance of this decision. Once the proposed judgment

7

is submitted, Plaintiff shall have five (5) days to file his objections. Each side is to

8

bear their own costs.

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10

IT IS SO ORDERED.

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Dated: October 5, 2015

_______________________________________
HONORABLE ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT COURT JUDGE

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31.