Faulkner v. Hartford Life & Accident Insurance Company et al

Filing 43

ORDER signed by Judge Lawrence K. Karlton on 3/15/2012 GRANTING 25 Motion for Summary Judgment; AWARDING Plaintiff with retroactive benefits and reinstatement of benefits; DENYING 20 Motion for Summary Judgment. CASE CLOSED. (Michel, G)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MARY BETH FAULKNER, NO. CIV. S-11-0408 LKK/CKD 11 Plaintiff, 12 13 v. O R D E R HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, et al., 14 Defendants. / 15 This is a case brought under the Employee Retirement Income 16 17 Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. 18 Plaintiff Mary Beth Faulkner challenges the termination of her 19 long-term disability benefits by defendant Hartford Life & Accident 20 Ins. 21 plaintiff’s motion for summary judgment is GRANTED, and defendant’s 22 cross-motion for summary judgment is DENIED. 23 24 Co. (“Hartford”). For the reasons set forth below, SUMMARY Plaintiff Mary Beth Faulkner was bitten by a tick while 25 camping with her family in Maryland. 26 complaining of debilitating fatigue and other symptoms. 1 Soon after, she began She was 1 examined and treated by several physicians and diagnosed with Lyme 2 Disease (among other diagnoses). 3 on the etiology of her complaints,1 but they all agreed that 4 Faulkner was suffering fatigue and other debilitating symptoms, 5 that the symptoms were real, and that they prevented her from 6 working on a full-time basis. 7 Security Administration determined that Faulkner was disabled 8 (effective October 20, 2001), and awarded her benefits.2 9 reached the same conclusion again on October 19, 2005.3 These physicians did not agree On December 20, 2003, the Social It Hartford 10 itself concluded that plaintiff, who was covered by Hartford’s 11 disability policy, was disabled by these symptoms, and awarded her 12 short-term disability 13 benefits. It conducted periodic reviews of plaintiff’s medical 14 records, and concluded each time that she was indeed disabled and 15 unable to work. benefits and then long-term disability 16 17 18 19 20 21 22 23 24 1 The various etiologies were Lyme disease, encephalopathy, chronic fatigue syndrome, Bartellenosis (Bartonella), Babeosis, fibromyalgia, and neuroborreliosis. 2 Dkt. No. 36 (Defendant’s Response to Plaintiff’s Statement of Undisputed Facts) ¶ 20; AR 788 (Dkt. No. 19-8). On May 9 and June 19, 2002, Hartford wrote to plaintiff asking (or requiring) her to apply for Social Security Disability benefits (“SSDI”) through the appeal process, as it appeared that her disability would last over 12 months. Dkt. No. 36 ¶ 11 (May 9, 2002); AR 864 (Dkt. NO. 19-9) (June 19, 2002). Plaintiff’s claim was initially denied in October 2002. Dkt. No. 36 ¶ 11; AR 839 (Dkt. No. 19-9). Plaintiff appealed the denial on November 30, 2002. Dkt. No. 36 ¶ 20; AR 821 (Dkt. No. 19-9). 3 25 26 Dkt. No. 36 ¶ 25; AR 618 (Dkt. NO. 19-7). This was apparently the decision on appeal. The Social Security Administration had previously informed plaintiff that her benefits would cease in May 2005. Dkt. No. 36 ¶ 23; AR 729 (Dkt. No. 19-8). 2 1 However, in 2008, Hartford thought that it had detected a 2 discrepancy in her treating physician’s statements, and initiated 3 a fraud investigation of plaintiff’s claim. 4 surreptitious surveillance of plaintiff, and finding no fraud, 5 Hartford hired a series of reviewers who concluded that Faulkner 6 was not disabled (one of them concluded, contrary to Hartford’s own 7 conclusions, that she had never been sick), and that she could 8 work. 9 terminated Faulkner’s disability benefits. After conducting a Based on the views of these hired reviewers, Hartford 10 seeking reinstatement of the benefits. 11 I. Faulkner sues here 12 BACKGROUND Starting March l5, 1999, plaintiff worked as a tax consultant 13 for PricewaterhouseCoopers LLP (“PwC”).4 14 became covered by defendant PricewaterhouseCoopers LLP Health & 15 Welfare Benefits Plan (the “Plan”).5 16 benefit plan sponsored by plaintiff’s employer PwC.6 17 administered and insured by defendant Hartford Life & Accident Ins. 18 Co.7 In July 1999, plaintiff The Plan is an employee The Plan was The Plan confers on Hartford “full discretion and authority 19 20 21 4 Dkt. No. 36 (Defendant’s Response to Plaintiff’s Statement of Undisputed Facts) ¶ 2. 5 22 Administrative Record (“AR”) 883 (Dkt. No. 19-9). 6 23 24 25 26 Dkt. No. 32 (Plaintiff’s Response to Defendant’s Statement of Undisputed Facts) ¶ 1. 7 Dkt. No. 36 ¶ 86. PwC is the Plan Administrator. However, “For purposes of claims administration, the Plan Administrator has assigned the fiduciary responsibility for claim determinations to Hartford Life & Accident Ins. Co., the Claims Administrator for this program.” Policy (“POL”) 037 (Dkt. No. 21-1). 3 1 to determine eligibility for benefits.”8 2 fiduciary capacity as administrator (“claims review fiduciary”), 3 Hartford determines whether a claim should be paid under the 4 policy,9 and then either pays the claim or not, in accordance with 5 its determination.10 6 A. 9 Tick Bite and Initial Treatment; Plaintiff Is Treated by Dr. Mo.11 7 8 Accordingly, in its On May 19, 2001, while hiking with her family in Maryland, plaintiff was bitten by a tick.12 She soon developed a bull’s-eye 10 expanding rash and came down with flu-like symptoms, including 11 fatigue, fever, headaches, myalgia, weakness, facial pain and 12 palsy, and dizziness.13 On June 14, 2001, plaintiff visited Steven 13 Mo, M.D., who was apparently her primary care doctor at that 14 time.14 15 Plaintiff continued to be treated by Dr. Mo (June 2001 to December Dr. Mo diagnosed plaintiff with “Lyme disease.”15 16 17 8 18 9 19 20 Dkt. No. 32 ¶ 7. “The people who operate your Plan, called ‘fiduciaries’ of the Plan, have a duty to do so prudently and in the interest of you and other Plan participants and beneficiaries.” POL 039. The claims procedure is governed by federal regulations promulgated at 29 C.F.R. § 2560.503–1. 21 10 POL 018 (Dkt. No. 21-1). 22 11 Steven Mo, M.D. 23 12 Dkt. No. 36 ¶ 3. 24 13 Dkt. No. 36 ¶ 4. 25 14 Id. ¶ 5. 26 15 Dkt. No. 36 ¶ 5. 4 1 2001), who reported on plaintiff’s fatigue, lethargy, neurologic 2 deficits, tremulous hands, inability to stand, walk or sit, and 3 incapacitating symptoms.16 4 examination findings 5 complaints. Dr. Mo never expressed any doubts about plaintiff’s 6 subjective complaints, and set the tone for the remainder of 7 plaintiff’s experiences when he noted that she was “unable to 8 perform meaningful tasks for long.”17 and Some of these findings were listed as others were listed as subjective 9 On July 5, 2001, plaintiff was admitted to the hospital, where 10 she was treated by Daniel P. Ikeda, M.D.,18 and received IV 11 antibiotic treatment.19 In July 2001, plaintiff applied for short- 12 term disability benefits under the Hartford policy.20 13 last day of work at PwC was July 15, 2001.21 Plaintiff’s On August 20, 2001, 14 16 15 16 17 18 19 20 AR 973-74 (Dkt. No. 19-10) (10-26-2001: Lyme disease, fatigue, myalgias, patient “is unable to perform any meaningful tasks for long”); 971 (10-10-2001: fatigue); 945-46 (8-7-2001 [signed]: Lyme disease; re activities - “some days [patient] cannot do any of these activities for more than a few minutes”); 940-41 (9-5-2001: Lyme disease, significant fatigue complaints, at 50% capacity); AR 907 (10-1-2001: fatigue). AR 897-98 (Dkt. No. 19-9) (11-30-2001 [signed] (Lyme disease, significant fatigue complaints, at 50% capacity); 870-71 (12-192001 [signed]: Lyme disease, relapsing symptoms, sometimes incapacitating). 21 17 22 18 23 AR 973 (Dkt. No. 19-10). Daniel P. Ikeda, M.D. of the Pulmonary Medicine, Infectious Disease and Critical Care Consultants Medical Group (Sacramento, Carmichael and Roseville, CA). 24 19 Dkt. No. 36 ¶ 6. 25 20 Dkt. No. 36 ¶ 9; AR 964 (Dkt. No. 19-10). 26 21 Dkt. No. 36 ¶ 2. 5 1 Hartford approved the payment of short-term disability benefits to 2 plaintiff, and subsequently extended payments through January 2, 3 2002, the maximum period for short-term disability benefits.22 4 B. Plaintiff Is Treated by Dr. Ikeda.23 5 On January 11, 2002, Hartford approved the payment of long- 6 term disability benefits to plaintiff, after finding that she was 7 unable to work in her own occupation.24 8 that plaintiff began to be treated principally by Daniel P. Ikeda, 9 M.D. (July 2001 to September 2004). Soon afterward, it appears Dr. Ikeda was clearly dubious 10 about plaintiff’s Lyme disease diagnosis.25 11 many examinations, he too noted her fatigue, although he indicated 12 that it might be caused by fibromyalgia Over the course of or chronic fatigue 13 14 15 16 17 18 22 Dkt. No. 36 ¶ 10. See also, AR 968 (Dkt. No. 19-10) (extension through September 23, 2001); AR 966 (Dkt. No. 19-10) (extension through September 16, 2001); AR 935 (Dkt. No. 19-10) (extension through September 30, 2001); AR 900 (Dkt. No. 19-9) (extension through November 30, 2001). See AR 880 (Dkt. No. 19-9) (referring to extension through December 31, 2001). 23 19 20 Daniel P. Ikeda, M.D. of the Pulmonary Medicine, Infectious Disease and Critical Care Consultants Medical Group (Sacramento, Carmichael and Roseville, CA). 24 21 22 23 24 25 26 Dkt. No. 36 ¶ 13; AR 854 (Dkt. No. 19-9). Under the Hartford policy, plaintiff was disabled if, during the first five years of benefits, she was unable to work in her own occupation. POL 008 (Dtk. No. 21-1). After that period, plaintiff was disabled if she could not work in any occupation. Id. See also, AR 883 (Dkt. No. 19-9) (12-19-2001: Application for Long-Term Disability Income Benefits, Employer’s Statement); AR 872 (Dkt. No. 19-9) (same, Employee’s Statement). 25 AR 696 (Dkt. No. 19-7) (3-22-2002: “I am not certain that she has Lyme disease whatsoever”); 692 (5-30-2002: “my impressions are that she probably no longer has active Lyme disease”). 6 1 syndrome.26 2 plaintiff’s subjective complaints. 3 disease diagnosis, however, that he scheduled plaintiff for a lab 4 test, predicting confidently that it would be negative. 5 came back positive, leading Dr. Ikeda to a new conclusion: “it 6 suggests 7 disease.”27 that Indeed, Mary he Beth never expressed any doubts about He was so doubtful of the Lyme continues to have The test persistent Lyme Plaintiff Is Examined by Dr. Liegner.28 8 C. 9 On September 10, 2002, plaintiff was evaluated by Kenneth B. 10 Liegner, M.D., of New York.29 11 the absence of laboratory substantiation, he had no doubt that 12 plaintiff had Lyme disease.30 Dr. Liegner reported that despite 13 26 14 15 16 17 18 19 20 21 See AR 950-51 (Dkt. No. 19-10) (7-12-2001: Lyme Disease; becomes tired easily); AR 700 (7-12-2001: suspected Lyme disease), 698 (3-22-2002 [no exam]: fatigue symptoms); 691-92 (5-30-2002 [no exam]: “Fibromyalgia/chronic fatigue syndrome”); 687 (10-7-2002: persistent Lyme disease); 681 (4-29-2003: fatigue syndrome with improvement); 677 (11-19-2003: improved fatigue syndrome), 673 (6-8-2004: “? fatigue syndrome”), 671 (9-20-2004: suspected Lyme disease). 27 AR 688 (Dkt. No. 19-7) (October 7, 2002); 685 (11-7-2002: Lyme disease with positive Lyme dot blot test); 679 (8-15-2003: chronic Lyme disease, generally improved). Later, Dr. Ikeda came to the conclusion that after treatment, Lyme disease might no longer be present. 673 (6-4-2004: “I am not convinced that this represents Lyme disease”). 28 22 23 24 Kenneth B. Liegner, M.D. of Internal & Critical Care Medicine (Armonk, NY). Although Dr. Liegner examined plaintiff, he does not reappear in the Administrative Record, so it does not seem that this New York doctor ever became a treating physician for plaintiff. 29 25 Dkt. No. 36 ¶ 16. 30 26 “There is absolutely no laboratory substantiation of the diagnosis however the clinical presentation seems so clear that I 7 Plaintiff is Treated by Dr. Green.31 1 D. 2 Plaintiff was then examined and treated by Christine Green, 3 M.D. (April 2002 to the present).32 4 wrote a letter to Hartford setting forth her view that plaintiff 5 was disabled from Lyme disease, and proposing to treat her for 6 neuroborreliosis.33 7 consistently reports on plaintiff’s fatigue and “cognitive trouble 8 memory issues.”34 9 encephalopathy, and concluded that plaintiff was “physically unable Like the On April 27, 2002, Dr. Green doctors before her, Dr. Green She diagnosed plaintiff with Lyme disease and 10 to stand, sit or walk consistently,” and that she “has had real 11 //// 12 //// 13 14 15 16 would say a diagnosis of Lyme disease is definite.” No. 19-9). AR 835 (Dkt. 31 Christine Green, M.D. of Green Oaks Medical Center, PC (Los Altos, CA). 32 17 Dr. Ikeda continued to treat plaintiff, also, at least until September 2004. 18 33 19 34 20 21 22 23 24 25 26 AR 858 (Dkt. NO. 19-9). On September 8, 2003, Hartford wrote to Dr. Christine Green, plaintiff’s treating physician, and requested the doctor’s notes and lab tests for September 1, 2002 through the present. On September 30, 2003, Dr. Green sent Hartford the requested records. According to those records, on February 19, 2003, Dr. Green reported, among other things, that plaintiff did not have the stamina to work, could not get up to shower, and could not drive to work. AR 804 (Dkt. No. 19-9). On March 26, 2003, Dr. Green reported, among other things, that the patient was “Overall better but unable to reliably work.” AR 802 (Dkt. No. 19-9). On April 30, 2003, Dr. Green reported progress, and that the patient was “overall better,” but also that she was “unable to reliably work.” AR 800 (Dkt. No. 19-8). On June 23, 2003, plaintiff reported that she was “doing better,” but also that “she still gets tired and will get off balance when she does.” AR 798 (Dkt. No. 19-8). 8 1 cognitive difficulty.”35 Dr. Green’s notes consistently state that 2 plaintiff has “shift work disorder ie cannot be alert for work.”36 3 Dr. Green reported that plaintiff improved somewhat under her 4 care, but remained disabled.37 5 plaintiff to work no more than 12 hours per week,38 and eventually 6 increased that to 18 hours per week.39 Dr. Green subsequently released 7 E. Hartford Confirms that Plaintiff Is Totally Disabled. 8 On August 31, 2006, Hartford advised plaintiff that going 9 forward (effective January 3, 2007), she would be required to show 10 that she was disabled such that she could not work in any 11 occupation for which she was qualified.40 12 Hartford advised plaintiff that it had “conducted a thorough review 13 of all the medical and vocational information” in her claim file.41 On January 11, 2007, 14 15 16 35 AR 610 (Dkt. No. 19-7) (December 3, 2005). See also AR 759 (Dkt. No. 19-8) (March 2, 2004) (same; patient can only work every other day). 17 36 18 37 19 20 21 22 E.g., AR 421 (Dkt. No. 19-5). See AR 610 (Dkt. No. 19-7) (significant improvement with antibiotic, but still “physically unable to stand, sit or walk consistently,” and “she has real cognitive difficulty”). 38 Dkt. No. 36 ¶ 28; AR 590 (Dkt. No. 19-6) (January 9, 2006). Plaintiff thereupon took a part-time job for another accounting firm until it ran out of work for her. Dkt. No. 36 ¶ 29. During this employment, she always kept Hartford fully informed of her work status. Id.; see also, AR 572 (Dkt. No. 19-6) (May 1, 2006). 23 39 24 40 25 26 Dkt. No. 36 ¶ 29; AR 561 (Dkt. No. 16-6) (May 8, 2006). Dkt. No. 36 ¶ 32; AR 047 (Dkt. No. 19-1). Previously, during in the first five years of benefits, plaintiff had to show only that she was unable to work in her own occupation. 41 AR 042 (Dkt. No. 19-1). 9 1 Based upon that review, Hartford determined that plaintiff met “the 2 policy definition of Disability,” and that she would continue to 3 receive long-term disability benefits.42 In essence, Hartford told 4 plaintiff that as of January 2007, it had determined that she was 5 disabled even under its strictest standard, that is, her health 6 prevented her from “performing one or more of the Essential Duties 7 of Any Occupation.”43 8 On June 8, 2007, Hartford began its first interim review of 9 plaintiff’s disability status since the change of her status in 2007.44 It attempted to obtain information from 10 January 11 plaintiff’s treating physician, but had trouble getting a proper 12 response from the doctor.45 13 July 2007 Attending Physician Statement because it was “minimal,” 14 and accordingly, Hartford wrote directly to Dr. Green asking for 15 copies of plaintiff’s medical records.46 The Administrative Record 16 appears to be silent about the outcome of this back-and-forth, 17 however, it appears that benefits continued. 18 infers that Hartford concluded that plaintiff continued to be 19 totally disabled through September 4, 2008, when it requested 20 another update. Hartford then rejected Dr. Green’s The court therefore 21 42 22 AR 042 (Dkt. No. 19-1). 43 23 See AR 047 (Dkt. No. 19-1) (August 31, 2006 letter setting out the definition of Disability under the policy). 24 44 AR 041 (Dkt. No. 19-1). 25 45 AR 039 (Dkt. No. 19-1). 26 46 AR 040 (Dkt. No. 19-1). 10 1 On September 4, 2008, Kay McCormick, the Hartford claims 2 specialist, again set about to get “updated information about your 3 disability for our claim records.”47 4 information 5 disability, and the amounts Hartford had paid out in benefits to 6 plaintiff. about plaintiff’s The specialist gathered earnings at the time of her She also requested information from Dr. Green.48 7 Dr. Green submitted office notes from September 22, 200849 and 8 October 4, 2008,50 and an Attending Physician Statement also dated 9 October 4, 2008.51 Hartford’s current litigation position is that 10 there was an “inconsistency between Dr. Green’s restrictions and 11 limitations on September 22, 2008 and October 4, 2008.”52 12 The September 22, 2008 office notes indicate, among other 13 things, that Dr. Green believes plaintiff could work 2 hours per 14 day, 3-4 days per week. 15 disorder ie cannot be alert for her work,” and that she is “still 16 disabled.”53 17 other things, that plaintiff has “Severe fatigue,” that she has It reports that she has “Shift work The October 4, 2008 office notes indicate, among 18 19 47 20 48 21 AR 033 (Dkt. No. 19-1). It appears that Hartford had some trouble getting a response from Dr. Green. AR 025-26 (Dkt. No. 19-1). In addition, McCormick sought information from Dr. Michael Burman. 22 49 AR 421, Dkt. No. 19-5. 23 50 AR 420, Dkt. No. 19-5. 24 51 AR 452, Dkt. No. 19-5. 25 52 Defendants’ Motion for SJ at 10 (Dkt. No. 20-1 at 16). 26 53 AR 421 (Dkt. No. 19-5). 11 1 “Shift work disorder ie cannot be alert for her work,” and that she 2 is “still disabled.”54 3 other things, the plaintiff can sit for 6 hours, stand for 30 4 minutes and walk for 1 hour, with an intermittent need to recline 5 or lie down.55 6 Attending Physicians (the “APS”), does not ask, nor provide a fill- 7 in location to indicate, how many days per week these activities 8 could be sustained. The October 4, 2008 APS indicates, among However, Hartford’s fill-in statement form for 9 Hartford does not explain what the inconsistency was. 10 only possibility for confusion the court can identify is that Dr. 11 Green’s statement on September 22nd states that plaintiff could 12 work 2 hours per day, 3-4 days per week, while her October 4th 13 statement is that plaintiff could sit six hours per day, in 14 addition to standing and walking an additional 1.5 hours. The 15 In fact, Dr. Green would later clarify, as she had previously 16 clarified for Hartford,56 although plaintiff could sit for six 17 hours per day, she could only keep this up for 3 days per week, and 18 that in any event, she could not sit for 6 hours in an office 19 environment.57 And even before 2007, Dr. Green had previously 20 21 54 AR 420 (Dkt. No. 19-5). 22 55 AR 452 (Dkt. No 19-5). 23 56 24 25 26 The medical forms sent to Dr. Green do not ask her to opine on how many days or hours in a week plaintiff could work. However, when Hartford specifically asked about this, in January 2007, Dr. Green advised Hartford that plaintiff could work no more than 18 hours in a week. AR 503 (Dkt. No. 19-6). 57 AR 380 (Dkt. No. 19-4) (February 21, 2009). 12 1 indicated that plaintiff could sit for 2 hours at a time, for up 2 to six hours in a day.58 3 notes, would have seen that Dr. Green’s notation of “2 hours” 4 referred to the amount of work or sitting plaintiff could do at a 5 time, and that plaintiff could do that 3 times in a day, for a 6 total of 6 hours. 7 inconsistency, since in each case, Dr. Green was saying that 8 plaintiff could work (sitting) for 2 hours at a time, three times 9 per day (6 hours total per day), for three days in the week (18 10 Hartford, had it reviewed Dr. Green’s Thus, it does not appear that there was any hours total per week). 11 F. Hartford Investigates Plaintiff for Fraud 12 Hartford never sought clarification from Dr. Green for what 13 it now claims was an inconsistency in her reports. 14 Hartford claims specialist handling plaintiff’s claim referred the 15 matter to Hartford’s Special Investigations Unit for a fraud 16 investigation, stating that plaintiff “may have more functionality 17 than what her AP [Attending Physician] has outlined.”59 18 investigation included surreptitious surveillance of plaintiff.60 19 It appears that the investigation and Instead, the The surreptitious 20 surveillance ended with no finding of fraud. 21 investigators found that plaintiff had “some functionality, but not 22 consistent functionality” regarding her ability to lift (referring 23 24 58 AR 512 (Dkt. No. 19-6). 25 59 AR 417 (Dkt. No. 19-5). 26 60 Dkt. No. 36 ¶ 39. 13 To the contrary, the 1 to lifting her baby into the car), bend at the waist (so that she 2 can put the baby in a car seat) and open and close car doors.61 3 G. 4 Hartford Hires Dr. Cohen62 for an Independent Medical Examination. 5 On February 17, 2009, Hartford hired Michael Cohen, M.D., to 6 provide 7 condition.63 8 reviewed the medical records in her file. 9 plaintiff suffered from “chronic fatigue syndrome, possibly related 10 to tick bite/Lymed disease/Babesiosis disease.”64 Nevertheless, he 11 found that plaintiff “does not have any cognitive deficit,” could 12 sit an unlimited number of hours in a day, stand, walk and lift 10 13 pounds during the day, bend at the waist, drive frequently, 14 interact with colleagues and customers, endorse checks and can 15 begin vocational rehabilitation. 16 any part of the medical record, nor any part of his own examination 17 that supported these conclusions. 18 an “independent” medical evaluation of plaintiff’s Dr. Cohen examined plaintiff on March 16, 2009, and Dr. Cohen found that He does not, however, identify Dr. Cohen does not address Dr. Green’s contrary finding that 19 plaintiff did have cognitive deficits. 20 Green’s contrary findings that He does not address Dr. plaintiff can only drive 21 22 23 61 SIU [a part of the administrative record relating to the Special Investigation Unit] 020 (Dkt. No. 24-4). 62 Michael Cohen, M.D. of Sutter Medical Group (Roseville, 25 63 Dkt. No. 36 ¶ 40; AR 023-24 (Dkt. No. 19-1). 26 64 AR 369 (Dkt. No. 19-4) (March 16, 2009). 24 CA). 14 1 infrequently and for short distances. 2 Green’s contrary finding that plaintiff is not ready for vocational 3 rehabilitation. 4 plaintiff could only work 18 hours per week. 5 Dr. Green’s finding that plaintiff was totally disabled.65 6 He does not address Dr. He does not address Dr. Green’s finding that He does not address In any event, Dr. Cohen does not opine on how many days a week 7 plaintiff could keep up the activities he listed. He does not 8 claim that plaintiff could work 40 hours a week, nor any more than 9 the 18 hours per week established by Dr. Green. Dr. Cohen 10 concluded that there was “no OBJECTIVE medical evidence to support 11 total disability.”66 12 not totally disabled, and does not reject Dr. Green’s finding that 13 plaintiff 14 significance to give the absence of objective evidence versus all 15 the examination findings and subjective complaints reported by all 16 the doctors who had examined and/or treated plaintiff before him. 17 On April 1, 2009, Hartford again wrote to Dr. Green, this time was However, he did not opine that plaintiff was totally disabled. He does not explain what 18 asking her to comment on Dr. Cohen’s evaluation. On April 19, 19 2009, Dr. Green strenuously objected to Dr. Cohen’s report, and 20 //// 21 //// 22 //// 23 65 24 25 26 Although Dr. Green found that plaintiff could work 18 hours, plaintiff was still totally disabled under the policy, because she could not work 40 hours per week in any job for which she was qualified. 66 AR 370 (Dkt. No. 19-4) (emphasis in text). 15 1 criticized Dr. Cohen’s 1-hour examination67 and record review.68 2 She reiterated her view that plaintiff could not work more than 3 half time, and noted that even assuming plaintiff could sit for 8 4 hours at a time, that did not mean she could sit and carry out 5 cognitive functions during that time. 6 Hartford Hires Dr. Mekjian69 for a Neurophsychological H. 7 Examination. 8 Hartford then hired Michael Z. Mekjian, Ph.D., to conduct a 9 neuropsychological examination of plaintiff. Dr. Mekjian conducted 10 a Neurophsychological exam on June 23, 2009. 11 asserts that it requested this examination in response to Dr. 12 Green’s suggestion,70 the record does not show why Hartford did not 13 follow through on Dr. Green’s other suggestions.71 14 concluded that: 15 Ms. Faulkner is not functioning up to Although Hartford her Dr. Mekjian fullest 16 17 18 67 Dr. Green does not state how she knows the examination lasted only one hour. 68 19 AR 359-61 (Dkt. No. 19-4). 69 20 Michael Z. Mekjian, Ph.D. of Neuropsychology, Psychodiagnostics & Forensics (Los Angeles, CA). 21 70 22 71 23 24 25 26 Dkt. No. 36 ¶ 48; AR 349 (Dkt. No. 19-4) (May 26, 2009). Dr. Green suggested “[1] neuropsychiatric testing, [2] Neurospect, [3] MRI, [4] measurement of neurological system such as EMG or sural nerve biopsies, and [5] other tests designed to rule out autoimmune or sequellae of Lyme disease.” AR 360 (Dkt. No. 19-4). Hartford followed through only on the subjective neuropsychiatric testing, but not on any of the other, apparently objective tests Dr. Green suggested. Dr. Green also suggested [6] an ophthamalogical exam and [7] a mental status exam (AR 359), neither of which Hartford followed up on. 16 1 neurocognitive potential at the present time, and does 2 show 3 capacities which appear to primarily be secondary to 4 fatigue affects which have an adverse impact on the 5 patient’s capacity to access her innate neurocognitive 6 processing abilities. As previously noted, Ms. Faulkner 7 does 8 neuropsychological 9 functioning 10 intermittent not exhibit is lapses any in cognitive significant deficits, adversely but organic her affected processing based neurocognitive by her chronic fatigue.72 11 He also concluded that plaintiff’s “fatigue levels clearly have a 12 negative impact on her overall neurocognitive processing capacities 13 [and her overall well-being] which would most likely carry over 14 into the workplace in terms of her general work capacities, work 15 stamina and consistency of work performance.” 16 Nevertheless, was not his final conclusion “sufficiently severe was that enough to plaintiff’s 17 condition render her 18 Temporarily Totally Disabled73 on either a neuropsychiatric or 19 psychiatric basis74 at the present time.”75 There is no substantive 20 72 21 AR 346 (Dkt. No. 19-4). 73 22 23 There is no explanation in the record of what is meant by “Temporarily Totally Disabled,” or whether it has anything to do with the definition of disability used in the Policy. 74 24 25 Dr. Mekjian is not a psychiatrist. There is no explanation in the record of how a non-psychiatrist can reach a reliable conclusion on a psychiatric matter. 75 26 Unsurprisingly, both sides claim that this report supports its case. 17 1 discussion of how plaintiff’s neurocognitive impairments might play 2 out in a 40-hour work week. 3 I. The Claims Specialist Who Suspected Fraud Evaluates 4 Plaintiff’s Employability. 5 Hartford next obtained an Employability Analysis Report 6 performed and prepared by Kay McCormick, the person who had just 7 referred plaintiff for a fraud investigation.76 8 concluded that plaintiff was qualified for her own occupation (but 9 no other).77 However, her report did not address whether plaintiff 10 Ms. McCormick could do that occupation full time.78 11 J. Hartford Terminates Benefits and Plaintiff Appeals. 12 On September 8, 2009, Hartford terminated plaintiff’s longdisability benefits.79 On December 8, 13 term 14 administratively appealed.80 15 Hartford, 16 Consortium (“UDC”) to conduct a medical review.81 on January 19, 2009, plaintiff As part of the appeal process, 2010, hired University Disability Hartford asked 17 76 AR 286 (Dkt. No. 19-3) (August 18, 2009). 77 AR 287 (Dkt. No. 19-3) (August 18, 2009). 18 19 78 20 21 22 23 Indeed, none of the forms Hartford uses that appear in the Administrative Record permit the recording of how many hours per week a person can sustain the work or activities asked about. They only ask how many hours per day a person can work. In the case of Dr. Green, this led Hartford in January 2007 to conclude, erroneously, that plaintiff could work full-time. Dr. Green corrected Hartford’s mis-interpretation of its own form, and plaintiff’s benefits continued. 24 79 Dkt. No. 36 ¶ 54; AR 011 (Dkt. No. 19-1). 25 80 Dkt. No. 36 ¶ 61; AR 163 (Dkt. No. 19-2). 26 81 Dkt. No. 36 ¶ 62; AR 153 (Dkt. No. 19-2). 18 1 UDC to review the medical information, and based upon that review, 2 to: 3 identify 4 sustain with reasonable continuity including [1] amount 5 of hours claimant can work per week, hours the claimant 6 can 7 claimant 8 balance, bend, stop, kneel, crouch, crawl, reach at 9 waist level/ above shoulder level & below waist level, sit, the functional stand, can walk in capacity the the workplace; lift/carry/push/pull, finger & [3] [2] drive, 10 handle, 11 restrictions 12 Please can amount climb, indicated for the period 9/9/09 to present.82 and feel. claimant limitations that indicate are any medically 13 Hartford asked UDS to “Be Specific.”83 Finally, Hartford asked UDC 14 to 15 Neuropsychological Evaluation, [6] claimant’s cognitive ability as 16 it relates to her functional capacity, and [7] claimant’s level of 17 fatigue as it relates to her functional capacity.84 18 the reviews to Milton Jay, Ed.D., and Daniel P. McQuillen, M.D. 19 On March 8, 2010, Hartford received reports from Dr. Jay and Dr. 20 McQuillen. [4] perform a co-morbid review, to comment on [5] the UDC assigned 21 Dr. McQuillen’s report does not acknowledge that he has been 22 asked to identify Faulkner’s functional capacity with specific 23 24 82 AR 154 (Dkt. No. 19-2). 25 83 AR 154 (Dkt. No. 19-2). 26 84 AR 154 (Dkt. No. 19-2). 19 1 reference to how many hours Faulkner can work, and the other 2 specific and enumerated issues. Instead, he acknowledges only the 3 general request that he comment on “claimant’s level of fatigue as 4 it relates to her functional capacity.”85 5 apparent failure to understand what was being asked of him, Dr. 6 McQuillen did not answer a single one of the specific questions 7 Hartford wanted answered. Instead, Dr. McQuillen found – contrary 8 to 9 physician who had examined and treated plaintiff – that there was 10 no evidence that plaintiff had ever been ill, and that he could 11 find nothing that indicated she was impaired or had ever been 12 impaired.86 Hartford’s own prior findings and the Consistent with his findings of every 13 Dr. Jay also did not acknowledge the specific questions that 14 had been asked of him – how many hours could Faulkner work, and the 15 other enumerated issues. 16 cognitive 17 significantly impaired.87 18 Dr. Mekjian’s report, and Dr. Green’s interpretation of it. 19 concluded that Dr. Green’s interpretation of the Mekjian report was 20 error, but that the Mekjian report was indeed flawed in several 21 ways. 22 plaintiff was not sufficiently impaired. problems He found that although plaintiff had traceable to her fatigue, she was not Dr. Jay reported almost exclusively on He Nevertheless, he relied on that report to conclude that 23 24 85 AR 127 & 137 (Dkt. No. 19-2). 25 86 AR 137 (Dkt. No. 19-2). 26 87 AR 144 (Dkt. No. 19-2). 20 Dr. Jay, also, fails to 1 indicate how many hours plaintiff could work or carry out the list 2 of activities he was asked about. Instead, like Dr. McQuillen, Dr. 3 Jay only answers the general “comment” question, ignoring the 4 specific questions that he was engaged to answer. 5 Both reviewers submitted their reports on the same day, March 6 8, 2010.88 7 denied the administrative appeal.89 In doing so, Hartford accepted 8 the doctors’ reports in toto, without comment or question, and 9 without any apparent concern that the doctors had neglected to 10 answer the questions they had been asked.90 Plaintiff timely seeks 11 judicial review of Hartford’s decision. 12 II. 13 That same day, at some time before 2:16pm, Hartford STANDARDS ERISA provides that every ERISA plan shall “afford a 14 reasonable opportunity to any participant whose claim for benefits 15 has been denied for a full and fair review by the appropriate named 16 17 18 88 AR 127 (Dr. McQuillen)& 138 (Milton Jay, Ed.D.). AR 113 (March 16, 2009: Dr. McQuillen, Addendum). See also, 89 19 20 21 22 23 24 25 26 AR 122-26 (Dkt. No. 19-2). At the hearing on this matter, counsel for Hartford argued that the appeal was not denied until March 16, 2009, after Dr. McQuillen had considered a submission by Dr. Green. This assertion is precluded by the administrative record, which is clear that the appeal was denied on March 8, 2010. AR 124; AR 103 (October 1, 2010) (“The Hartford’s final appeal decision was made on March 8, 2010,” notwithstanding Dr. Green’s subsequent submission, and Dr. McQuillen’s “addendum”). 90 AR 002 (Dkt. No. 19-1). There is nothing in the record that states what time of day the UDC reports arrived at Hartford. However, the Administrative Records shows that Hartford viewed March 8, 2010 as an absolute deadline for issuing its determination on appeal. Accordingly, it does not appear that Hartford had any time to take a look at the reports or to notice that they were totally inadequate. 21 1 fiduciary of the decision denying the claim.” 29 U.S.C.A. § 2 1133(2). 3 participant may bring an action in federal district court “to 4 recover benefits due to him under the terms of his plan.” 5 U.S.C. § 1132(a)(1)(B). If the plan upholds the denial of the claim, the 29 6 Once brought into court, the decision to deny benefits is 7 treated like the determination of an agency, in that it comes to 8 this 9 ‘administrative record’ consists of ‘the papers the insurer had court for “review.” “In the ERISA context, the See Montour v. Hartford Life & Acc. 10 when it denied the claim.’” 11 Ins. Co., 588 F.3d 623, 632 n.4 (9th Cir. 2009), quoting Kearney 12 v. Standard Ins. Co., 175 F.3d 1084, 1086 (9th Cir.), cert. denied, 13 528 U.S. 964 (1999).91 14 The question for this court is whether Hartford provided 15 plaintiff with a “full and fair” review of its decision to 16 91 17 18 19 20 21 22 23 24 25 26 "The record that was before the administrator furnishes the primary basis for review." Kearney, 175 F.3d at 1090. As the Ninth Circuit has explained this rule: A primary goal of ERISA was to provide a method for workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously. Permitting or requiring district courts to consider evidence from both parties that was not presented to the plan administrator would seriously impair the achievement of that goal. Taft v. Equitable Life Assur. Soc., 9 F.3d 1469, 1472 (9th Cir. 1993). It is important to recognize, however, that confining the administrative record in this way contains the danger of confusing the business records of an insurance company with the regulatory record accumulated by a governmental agency. This court is of course bound by the Ninth Circuit’s rule, and so it will review the record compiled by the claim administrator as the “administrative record.” 22 1 terminate benefits. 2 a “full and fair review,” the administrative appeal decision by 3 Hartford must not “afford deference to the initial adverse benefit 4 decision,” 5 § 2560.503-1(h)(3)(ii) & (h)(4).92 6 the benefit determination was “based in whole or in part on a 7 medical judgment,” Hartford was required to “consult with a health 8 care professional who has appropriate training and experience in 9 the field of medicine involved in the medical judgment.” 29 C.F.R. 10 11 among 29 C.F.R. § 2560.503-1(h)(1). other requirements. To qualify as 29 C.F.R. In addition, where, as here, § 2560.503-1(h)(3)(iii) & (h)(4). Finally, Hartford imposed an additional condition on its own 12 review. 13 (UDC), Hartford stated that “To maintain objectivity, any prior 14 medical consultant reviews are not enclosed.” 15 No. 19-2).93 16 17 In sending the medical files to its medical reviewer AR 152 (Dkt. The standard of review applicable here depends upon the language of the Plan itself: 18 a denial of benefits challenged under § 1132(a)(1)(B) is 19 to be reviewed under a de novo standard unless the 20 benefit 21 discretionary authority to determine eligibility for plan gives the administrator or fiduciary 22 92 23 24 Section 2560.503-1(h)(3)(ii) applies to group health plans. However, Section 2560.503-1(h)(4) makes that section applicable to disability benefit plans, as well. 93 25 26 In spite of this, Hartford did send the medical reviews of Dr. Cohen and Dr. Mekjian to UDC, and the UDC reviewers relied upon those reports. Neither side discusses whether those reports are in fact “medical consultant reviews.” 23 1 benefits. 2 Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) 3 (emphasis 4 administrator or fiduciary such discretion, the court reviews the 5 denial of benefits under the “abuse of discretion” standard. 6 Mitchell v. CB Richard Ellis Long Term Disability Plan, 611 F.3d 7 1192, 1198 (9th Cir. 2010). 8 Hartford “full discretion and authority to determine eligibility 9 for benefits.” added). Where the benefit plan does give the In this case, the Plan confers upon Standard Ins. Co. v. Morrison, 584 F.3d 837, 840 10 (9th Cir. 2009), cert. denied, 560 U.S. ___, 130 S.Ct. 3275 (May 11 17, 2010) (No. 09-885).94 12 standard applies. 13 Accordingly, the “abuse of discretion” Id., 584 F.3d at 840. However, there is a wrinkle in the standard of review because 14 Hartford is both the fiduciary administrator and also the insurer. 15 Thus, it has the fiduciary obligation to make benefit decisions 16 that are in the best interests of the insured; thus, if the 17 decision is that the claim is good, it has to pay. 18 Hartford with a “structural conflict of interest.” 19 Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir. 2006) (en banc) 20 (“We 21 administrator and the funding source for benefits operates under 22 what may be termed a structural conflict of interest”). The “abuse 23 of discretion” standard still applies despite this conflict. 24 Abatie, 458 F.3d at 965 (“Abuse of discretion review applies to a have held that an insurer that acts as This burdens Abatie v. Alta both the plan 25 94 26 Citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989). 24 1 discretion-granting plan even if the administrator has a conflict 2 of interest”). 3 somehow, and generally requires the court to apply a level of 4 skepticism in conducting its “abuse of discretion” review. Salomaa 5 v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th 6 Cir. 2011) (abuse of discretion standard applies, but “a higher 7 degree of skepticism is appropriate where the administrator has a 8 conflict of interest”); Nolan v. Heald College, 551 F.3d 1148, 1153 9 (9th Cir. 2009) (same). 10 However, the conflict must be taken into account To this end, the court is instructed to “temper the abuse of 11 discretion standard 12 conflict. 13 record 14 the decision-making process.’” Id. 15 its determination on the conflict before it considers whether the 16 decision to terminate benefits was correct under the applicable 17 standard. Id. with skepticism ‘commensurate’ with the This will require going outside the administrative “to decide the conflict's “‘nature, extent, and effect on Moreover, the court must make Id. Next, the court must consider that the case comes before it 18 19 on summary judgment. In the absence of a conflict, the summary 20 judgment route is just the mechanism used to get the case before 21 the court. 22 administrative record – the court simply decides the case based 23 upon that record. 24 the court views that evidence “through the lens of the traditional 25 rules of summary judgment.” 26 //// Since the record on “appeal” is closed – it’s the In making the conflict determination, however, 25 1 III. SUMMARY OF THE ARGUMENTS 2 Plaintiff argues that because of Hartford’s structural 3 conflict of interest, this court should view Hartford’s decision 4 with “significant skepticism,” and should consider facts outside 5 the administrative record in determining how much skepticism to 6 apply. 7 argument is solely based on Hartford’s use of UDC to provide 8 doctors to review the records on appeal.95 9 Apart from the structural conflict itself, plaintiff’s Defendant argues that it has correctly managed the conflict. 10 It submits evidence tending to show that that it takes many, many 11 steps to ensure that its appeals decision-makers are not influenced 12 by its profit motive. 13 IV. DISCUSSION 14 The policy at issue here provides that after the initial 5- 15 year period of long-term disability benefits, a person continues 16 to be disabled only if she is prevented by sickness (or by some 17 other 18 Essential Duties” of any occupation. 19 Essential Duties of an occupation is the ability to be “at work for 20 the number of hours in Your regularly scheduled workweek.” specified cause) “from performing one or POL 008. more of the One of the POL 21 95 22 23 24 25 26 Plaintiff relies on Judge Wilkens’s opinion in Caplan v. CNA Financial Corp., 544 F. Supp.2d 984 (N.D. Cal. 2008). In Caplan, the district court received evidence regarding UDC’s financial dependence on referrals from the insurer (Hartford Group Life Ins. Co., perhaps a different entity than involved here), evidence of the reviewing doctor’s lop-sided findings of nondisability on claims submitted to him for review, his belief that “anybody can work in a sedentary occupation,” and his belief that only “objective findings,” are acceptable indications of disability. 544 F. Supp.2d at 989-90. 26 1 008. It is undisputed that the physical requirements of 2 plaintiff’s job are frequent standing, walking, sitting, reaching 3 and keyboard use, and 40 hours of work.96 4 A. 5 The “abuse of discretion” standard applies in this case. 6 only issue here is whether the court should “temper” the standard 7 with “skepticism” based upon the possible effect of the conflict 8 on 9 Hartford’s decision to terminate plaintiff’s long-term disability 10 Conflict of Interest / Bias Hartford’s decision-making. Under either view, The however, benefits was an abuse of discretion. 11 B. Plaintiff’s Administrative Appeal 12 On January 19, 2010, Hartford referred plaintiff’s case on 13 appeal to University Disability Consortium for review. AR 153 14 (Dkt. No. 19-2). 15 questions, as set forth above. On March 8, 2010, Hartford received 16 two reports from UDC: (1) a March 8, 2010 report authored by Daniel 17 McQuillen, M.D.; and (2) a March 8, 2010 report authored by Milton 18 Jay, Ed.D. 19 wrote to plaintiff denying her administrative appeal. It asked UDC to answer several enumerated That same day, relying upon those reports, Hartford 20 1. Dr. McQuillen’s Report 21 Dr. McQuillen recapitulates at length (8 pages) the notes 22 of others, and the lab results. The two parts of the report that 23 appear to be his response to the questions put to him are his 24 96 25 26 AR 884 (Dkt. No. 19-9). Hartford’s termination of benefits was based upon its finding that plaintiff could work at her own occupation. Accordingly, the requirements of her own job are the ones at issue here. 27 1 Diagnoses and Discussion, and his final conclusions. 2 a. Diagnosis and Discussion 3 Dr. McQuillen’s Diagnosis and Discussion centers entirely on 4 his view that plaintiff does not have Lyme disease, Babesiosis or 5 Bartonellosis. 6 Disease was based entirely on self-reporting by the patient, and 7 that “The records reviewed do not contain any objective reports of 8 this illness [Lyme Disease] by a treating physician at the time.” 9 AR 135 (Dkt. No. 19-2). He states that plaintiff’s diagnosis of Lyme He explains away a positive test result 10 for the disease at some length by hinting that the laboratory was 11 using inappropriate tests,97 and then indicating that if plaintiff 12 had Lyme Disease, the test results indicate that she was cured. 13 He goes on to state that “The records reviewed do not substantiate 14 a diagnosis of any active infectious illness for the period 15 reviewed (6/01 - 2009),” and that “Clinical illness compatible with 16 Babesiosis, Bartonellosis, or Lyme disease is not present in the 17 records reviewed.” 18 was never sick, not even during the period Hartford itself found AR 137 (Dkt. No. 19-2). In short, plaintiff 19 20 97 21 22 23 24 25 26 In support, Dr. McQuillen quotes a CDC report. But he omits the following from the same report: “Health-care providers are reminded that a diagnosis of Lyme disease should be made after evaluation of a patient's clinical presentation and risk for exposure to infected ticks, and, if indicated, after the use of v a l i d a t e d l a b o r a t o r y t e s t s . ” cdc.gov/mmwr/preview/mmwrhtml/mm5405a6.htm. Dr. McQuillen does not indicate whether the testing he criticizes is in fact the type disapproved in the CDC report, and he ignores the CDC injunction that clinical presentation and risk for exposure to infected ticks is important, as well as validated laboratory tests, “if indicated.” Dr. McQuillen did not examine plaintiff. 28 1 that she was sick.98 2 b. 3 4 Final Conclusions Dr. McQuillen concludes with the only comments he makes on the questions asked of him: 5 The claimant’s self-reported level of fatigue is not 6 substantiated 7 appears 8 records. 9 the objective medical findings in the medical records. 10 I find no evidence in the medical records reviewed of a 11 physical diagnosis that would impart any limitation to 12 functional capacity. to by the overstate objective the medical findings in records the and medical The APS limitations also appear to overstate 13 AR 137 (Dkt. No. 19-2) (emphasis added). 14 not disabled, and was never disabled during the period June 2001 15 to the present. c. 16 Analysis of McQuillen’s Report To put it mildly, there are several problems with McQuillen’s 17 18 In short, plaintiff is report: 19 (1) It entirely fails to answer the very first 20 question Hartford posed: how many hours was plaintiff able to work 21 during the week, and what functional capacity she could sustain 22 with reasonable continuity.99 Instead, McQuillen avoids the 23 98 24 25 The fact that he never saw plaintiff and that his conclusion contradicts every doctor who saw her, does not phase him at all. 99 26 McQuillen’s dissertation on whether plaintiff had Lyme disease, and the proper testing methodologies are interesting, but 29 1 questions by giving non-answers: the level of fatigue claimed is 2 not supported by the record (without stating what level of fatigue, 3 if any, is supported by the record); the limitations are overstated 4 (but he does not say what the proper limitations are, if any); and 5 he did not find evidence supporting a limitation to functional 6 capacity 7 limitations on her functional capacity or whether Dr. Mo, Dr. Ikeda 8 and Dr. Green were all wrong).100 9 specific (although specificity was requested) there is no way to 10 know if Dr. McQuillen was saying that plaintiff had no functional 11 capacity limitations relative to a 40-hour work week, or whether 12 he was referring to the 18-hour work week for which plaintiff had 13 already received a medical release from Dr. Green. 14 been extraordinary for Dr. McQuillen to be referring to a 40-hour 15 work week, since no doctor who examined the plaintiff – including 16 Dr. Cohen – had opined that plaintiff could complete a 40-hour work 17 week. 18 medical records. (without saying whether plaintiff nevertheless had Critically, by failing to be It would have Dr. McQuillen did not examine the plaintiff, only the 19 20 21 22 as Hartford points out in its moving papers, whether plaintiff had a specific disease or not does not answer the question of whether she was disabled. Plaintiff could have Lyme disease and still be able to work, and conversely she could be free of Lyme disease but still be unable to work. 100 23 24 25 26 If McQuillen could not find the evidence he needed to answer Hartford’s questions, he could have said so, and advised Hartford that he could not give them an opinion. Instead, he answers legalistically, as if ruling on whether plaintiff had met her burden of proof. But Hartford did not ask Dr. McQuillen if plaintiff met her burden of proof; it asked him to identify and quantify her functional capacities and limitations. He did not do so. 30 1 (2) It is false in stating or insinuating that 2 plaintiff’s complaints were all her own subjective reports. 3 medical records contain the objective medical examinations and 4 observations of Dr. Mo., Dr. Ikeda, Dr. Liegner, Dr. Green, and 5 even the reviewers hired by Hartford, Dr. Cohen, Dr. Mekjian and 6 Dr. 7 completely discards, without explanation, the views of every other 8 treating physician or other reviewer who had preceded him. 9 McQuillen, and UDC, are not required to accord “special weight” the Jay (McQuillen’s 12 neither 13 reliable evidence, including the opinions of a treating physician.” 14 Id. to credit a & Decker However, claimant's (3) It is false because there were positive lab 15 findings of disease;101 and 17 18 refuse Black Dr. Disability Plan v. Nord, 538 U.S. 822, 834 (2003). “arbitrarily physicians. McQuillen 11 they treating essence, opinions may Faulkner’s In 10 16 of co-reviewer). The (4) The final conclusions have no apparent relationship to the Diagnosis and Discussion; 19 (5) Neither the discussion nor the findings 20 address the contrary findings of every treating or examining 21 22 23 24 25 26 101 McQuillen says he “finds no evidence in the medical records reviewed of a physical diagnosis that would impart any limitation to functional capacity.” But the records do contain evidence of such a physical diagnosis – fibromyalgia, Lyme disease, chronic fatigue syndrome, Bartonellis, Babeosis – that would impart limitations to plaintiff’s functionality. And there are positive lab results for the Babeosis and Lyme disease, although they were outnumbered by the negative test results. See Dkt. No. 36 ¶¶ 74 & 76. 31 1 physician or reviewer who saw plaintiff before McQuillen;102 and 2 (6) Neither the discussion nor the findings 3 address 4 fibromyalgia, encephalopathy or chronic fatigue syndrome – that 5 were diagnosed by the physicians who preceded McQuillen, and which 6 were accepted by Hartford and SSA from 2001 until September 2008. 7 8 9 any 2. other possible causes of plaintiff’s fatigue – Milton Jay, Ed.D.’s Report. Dr. Jay reported several problems with Dr. Mekjian’s report, the only report he mentions or relies upon. It is not completely 10 clear to a lay decision-maker how serious all those problems were, 11 but they appear to be important flaws.103 12 Dr. Jay criticized Dr. Mekjian for conducting “no specific testing 13 of sustained attention,” even though plaintiff’s ability to work 14 40 hours per week was the question of the day. 15 apparently 16 concurred that plaintiff was not sufficiently impaired. 17 using Dr. Mekjian’s faulty Perhaps most important, test Nevertheless, results, Dr. Jay Worse, Dr. Jay seems to misrepresent, or at least grossly 18 oversimplify, Dr. Mekjian’s report and findings. Dr. Mekjian did 19 find that “Ms. Faulkner does not exhibit any significant organic 20 processing abilities.” 21 found that “Ms. Faulkner is not functioning up to her fullest 22 neurocognitive potential,” that she shows “intermittent lapses in However, as discussed above, Dr. Mekjian 23 102 24 25 Dr. Quillen regurgitates their findings, but then makes no further mention of them, and does not analyze or comment on them in any way. 103 26 Among other things, Dr. Mekjian versions of intelligence and memory tests. 32 used long out-dated 1 cognitive processing capacities ... which have an adverse impact 2 on the patient’s capacity to access her innate neurocognitive 3 processing abilities,” that “her neurocognitive functioning is 4 adversely affected by her chronic fatigue,” that her “fatigue 5 levels clearly have a negative impact on her overall neurocognitive 6 processing capacities,” and that these levels would also negatively 7 “carry over into the workplace in terms of her general work 8 capacities, work stamina, and consistency of work performance.”104 9 Without explanation, Dr. Jay interprets these findings as 10 saying that 11 Although 12 plaintiff was not “Temporarily Totally Disabled,”105 he did not 13 indicate that her impairments were minimal or incidental. 14 contrary, the litany of adverse effects and impairments Dr. Mekjian 15 described tend to establish disability, not to disprove it. Dr. 3. 16 17 Faulkner’s Mekjian cognitive found, also impairments without were minimal. explanation, that To the Hartford’s Response to the UDC Reports The Administrative Record shows that Hartford did not afford 18 plaintiff a full and fair review of the denial of her benefits. 19 Indeed, such a review appears to be precluded by Hartford’s 20 apparent mis-management of the appeal deadlines under which it 21 operated 22 limitations. both by regulation and by its own self-imposed According to the Administrative Record, Hartford 23 104 24 25 26 AR 346 (Dkt. No. 19-4). 105 There is no explanation of what Dr. Mekjian means by “Temporarily Totally Disabled,” as that is not a term defined in the policy. 33 1 received plaintiff’s administrative appeal on December 11, 2009.106 2 Including permitted extensions, Hartford faced a legal deadline of 3 March 11, 2011 to make a determination on the appeal (an original 4 45 day determination period after receipt of the appeal, plus a 45- 5 day extension).107 29 C.F.R. § 2560.503–1(i)(1)(I), 503-1(i)(3)(I). 6 The appeal was assigned to an appeals specialist, Jeff Jones, 7 who referred the matter to UDC on January 19, 2010.108 The referral 8 document does not advise UDC when its review should be completed. 9 However, the appeals specialist was later advised that any 10 decision granting benefits (that is, overturning the termination 11 of benefits) had to be made by March 8, 2011 (six months after the 12 initial termination of benefits) because otherwise plaintiff would 13 lose certain other benefits provided by PwC even if she received 14 the long-term disability benefits.109 15 thereupon acted pursuant to the shorter deadline, and notified PwC 16 that it would have its decision no later than March 8, 2010.110 To its credit, Hartford 17 On March 1, 2011, one week before Hartford’s self-imposed 18 deadline for deciding the appeal, the appeals specialist asked UDC 19 //// 20 106 21 AR 163 (Dkt. No. 19-2). 107 22 23 The Administrative record shows that Hartford was aware of this deadline. The appeals specialist assigned to the case clearly understood this, and so advised plaintiff in a letter setting forth the applicable deadlines. AR 159 (Dkt. No. 19-2). 24 108 AR 153-54 (Dkt. No. 19-2). 25 109 Dkt. No. 36 ¶ 64; AR 149 (Dkt. No. 19-2). 26 110 AR 149 (Dkt. No. 19-2). 34 1 for information on when its report would be completed.111 2 advised that the UDC reviewers were working on it at that moment.112 3 The UDC reports were completed on the exact date of Hartford’s 4 self-imposed deadline – March 8, 2010.113 This situation inherently 5 precluded the possibility of a full and fair review, unless the 6 reports were so obviously flawless that they raised no questions 7 and led inexorably to only one conclusion.114 8 received that day were nothing of the kind. 9 He was The reports Hartford Indeed, Hartford, upon reading the reports, must have seen 10 their deficiencies and the other issues they raised.115 11 notably, it would have noticed that neither doctor answered the 12 questions asked of them, that Dr. McQuillen’s report completely 13 undermined Hartford’s own disability findings over the prior eight 14 years, and that Dr. Jay’s report severely criticized the report – 15 Dr. Mekjian’s, the only one he was asked to review – that Hartford 16 relied upon in terminating plaintiff’s benefits. 17 adopted the report instantaneously, sending out its administrative Most Yet, Hartford 18 19 111 Dkt. No. 36 ¶ 65; AR 148 (Dkt. No. 19-2). 20 112 Dkt. No. 36 ¶ 65; AR 145 (Dkt. No. 19-2). 21 113 Dkt. No. 36 ¶ 66; AR 127 & 138 (Dkt. No. 19-2). 22 114 23 24 25 26 Hartford asserts that the March 8th deadline was “irrelevant and immaterial.” Dkt. No. 36 ¶¶ 64 & 66. To the contrary, it was crucial to Hartford’s inability to provide the “full and fair review” that it was legally obligated to provide Faulkner’s appeal. 115 At least, Hartford would have seen the problems if it had taken any time to read the reports, rather than adopting them as soon as they were received. 35 1 denial before mid-afternoon of the same day both reports were 2 received, March 8, 2010. 3 Hartford asked either doctor to explain their findings or their 4 failures 5 rejection of Hartford’s own “thorough review” of plaintiff’s 6 medical records, or anything else. 7 way, and Hartford accepted it without any question or delay.116 to answer the There is no evidence in the record that questions asked of them, McQuillen’s The report came out Hartford’s 8 Instead of questioning these obvious flaws, or rejecting the 9 reports because of them, the Hartford appeal determination simply 10 copied down the last two paragraphs of Dr. McQuillen’s report, and 11 the last two paragraphs of Dr. Jay’s report, and concluded that 12 based upon those reports, the appeal was denied.117 This is not the 13 consultation with health care professionals that Hartford was 14 required to conduct under the applicable regulations. 15 C.F.R. § 2560.503-1(h)(3)(iii) & (h)(4) (requirement to “consult” 16 with health care professional in determining appeals). 17 See 29 Meanwhile, the record contains overwhelming medical evidence 18 in support of plaintiff’s underlying disability claim. All of her 19 treating physicians found that plaintiff was disabled, as discussed 20 21 22 23 24 25 26 116 In addition, this is conduct that inevitably raises the question whether this conflicted administrator was just looking for a way to terminate expensive, long-term disability benefits. Even accepting all of Hartford’s attempts to erect walls between the financial people and the appeals section, this conduct is inherently suspicious, and justifies applying some skepticism to the court’s “abuse of discretion” standard. 117 The rest of the determination letter itself simply recounted the history of the case and did not depend on the UDC reports. 36 1 above. 2 causing the disability, they all agreed that she was disabled, and 3 could not work 40 hours per week. 4 she could possibly work 18 hours per week. 5 Although, as noted, there was disagreement about what was At most, Dr. Green found that The record shows that she was not malingering – and Hartford 6 makes no claim that she was. 7 that Faulkner tried to work or volunteer at every opportunity, but 8 relapsed when she tried to do so. Despite the overwhelming medical 9 evidence of Faulkner’s disability, and the complete absence of any 10 evidence 11 notwithstanding all the “independent” medical examinations and 12 reviews 13 benefits. 14 15 of any Hartford kind To the contrary, the record shows that purchased she – could Hartford work 40 terminated hours – Faulkner’s The law requires that those benefits be restored. V. 16 CONCLUSION For the foregoing reasons 17 1. is Plaintiff’s motion for summary judgment is GRANTED. 18 Plaintiff awarded 19 termination of her benefits to the date of this order, and 20 reinstatement 21 plaintiff may move for pre-judgment interest,118 post-judgment 22 //// 23 //// of her retroactive benefits benefits going from forward. the In date of addition, 24 118 25 26 See Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620, 627 (9th Cir. 2007) (“A district court may award prejudgment interest on an award of ERISA benefits at its discretion”). 37 1 interest if applicable,119 2 costs,120 on a separate motion. 3 2. 4 reasonable attorneys’ fees and IT IS SO ORDERED. 5 and Defendant’s motion for summary judgment is DENIED. DATED: March 15, 2012. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 119 24 25 26 See 28 U.S.C. § 1961(a) (post-judgment interest allowed on money judgment in civil cases); Dishman v. UNUM Life Ins. Co. Of America, 269 F.3d 974 (9th Cir. 2001) (addressing the date postjudgment interest begins to run). 120 29 U.S.C. § 1132(g)(1). 38

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