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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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARY BETH FAULKNER,
NO. CIV. S-11-0408 LKK/CKD

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Plaintiff,

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v.

O R D E R

HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY, et al.,

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Defendants.
/

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This is a case brought under the Employee Retirement Income

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Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq.

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Plaintiff Mary Beth Faulkner challenges the termination of her

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long-term disability benefits by defendant Hartford Life & Accident

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Ins.

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plaintiff’s motion for summary judgment is GRANTED, and defendant’s

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cross-motion for summary judgment is DENIED.

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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

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Faulkner was suffering fatigue and other debilitating symptoms,

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that the symptoms were real, and that they prevented her from

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working on a full-time basis.

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Security Administration determined that Faulkner was disabled

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(effective October 20, 2001), and awarded her benefits.2

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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

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unable to work.

benefits

and

then

long-term

disability

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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,

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Hartford hired a series of reviewers who concluded that Faulkner

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was not disabled (one of them concluded, contrary to Hartford’s own

7

conclusions, that she had never been sick), and that she could

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work.

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terminated Faulkner’s disability benefits.

After conducting a

Based on the views of these hired reviewers, Hartford

10

seeking reinstatement of the benefits.

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I.

Faulkner sues here

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BACKGROUND
Starting March l5, 1999, plaintiff worked as a tax consultant

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for PricewaterhouseCoopers LLP (“PwC”).4

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became covered by defendant PricewaterhouseCoopers LLP Health &

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Welfare Benefits Plan (the “Plan”).5

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benefit plan sponsored by plaintiff’s employer PwC.6

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administered and insured by defendant Hartford Life & Accident Ins.

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Co.7

In July 1999, plaintiff

The Plan is an employee
The Plan was

The Plan confers on Hartford “full discretion and authority

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4

Dkt. No. 36 (Defendant’s Response to Plaintiff’s Statement
of Undisputed Facts) ¶ 2.
5

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Administrative Record (“AR”) 883 (Dkt. No. 19-9).

6

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24
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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”),

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Hartford determines whether a claim should be paid under the

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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

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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

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fatigue, fever, headaches, myalgia, weakness, facial pain and

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palsy, and dizziness.13 On June 14, 2001, plaintiff visited Steven

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Mo, M.D., who was apparently her primary care doctor at that

14

time.14

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Plaintiff continued to be treated by Dr. Mo (June 2001 to December

Dr.

Mo

diagnosed

plaintiff

with

“Lyme

disease.”15

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17

8

18

9

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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

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Steven Mo, M.D.

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12

Dkt. No. 36 ¶ 3.

24

13

Dkt. No. 36 ¶ 4.

25

14

Id. ¶ 5.

26

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Dkt. No. 36 ¶ 5.
4

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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

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last day of work at PwC was July 15, 2001.21

Plaintiff’s

On August 20, 2001,

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16

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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

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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).

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19

Dkt. No. 36 ¶ 6.

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20

Dkt. No. 36 ¶ 9; AR 964 (Dkt. No. 19-10).

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21

Dkt. No. 36 ¶ 2.
5

1

Hartford approved the payment of short-term disability benefits to

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plaintiff, and subsequently extended payments through January 2,

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2002, the maximum period for short-term disability benefits.22

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B.

Plaintiff Is Treated by Dr. Ikeda.23

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On January 11, 2002, Hartford approved the payment of long-

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term disability benefits to plaintiff, after finding that she was

7

unable to work in her own occupation.24

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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

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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

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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

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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.

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Liegner, M.D., of New York.29

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the absence of laboratory substantiation, he had no doubt that

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plaintiff had Lyme disease.30

Dr. Liegner reported that despite

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26

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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

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consistently reports on plaintiff’s fatigue and “cognitive trouble

8

memory issues.”34

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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