Dorsey v. Metropolitan Life Insurance Company

Filing 29

ORDER signed by District Judge Kimberly J. Mueller on 8/28/17, ORDERING that Plaintiff's 18 Motion for Summary Judgment is DENIED, and MetLife's 20 Motion is GRANTED. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIMBERLY DORSEY, 12 Plaintiff, 13 14 15 No. 2:15-cv-02126-KJM-CKD v. ORDER METROPOLITAN LIFE INSURANCE COMPANY, Defendant. 16 17 After being denied long-term disability (LTD) benefits, plaintiff Kimberly Dorsey 18 19 sued Metropolitan Life Insurance Company (MetLife) for allegedly violating the Employee 20 Retirement Income Security Act (ERISA). Defendant MetLife cross-moved, contending denial 21 was proper. At hearing, David Allen appeared for Ms. Dorsey and Robert Hess appeared for 22 MetLife. ECF No. 27. As explained below, the court DENIES Ms. Dorsey’s motion and 23 GRANTS MetLife’s cross-motion. 24 I. 25 PROCEDURAL HISTORY Plaintiff filed her complaint on October 13, 2015. ECF No. 1. After MetLife 26 answered, ECF No. 8, the parties agreed the case would be resolved through cross-motions for 27 judgment under Federal Rule of Civil Procedure 52, ECF No. 16. The parties then cross-moved, 28 1 1 Pl.’s Mot., ECF Nos. 18; Def.’s Mot., ECF No. 20, and opposed each other’s cross-motions, Pl.’s 2 Opp’n, ECF No. 21; Def.’s Opp’n, ECF No. 22. 3 II. FACTUAL BACKGROUND 4 The administrative record contains relevant facts. See Abatie v. Alta Health & Life 5 Ins. Co., 458 F.3d 955, 970 (9th Cir. 2006) (district courts rely on the administrative record in 6 assessing an ERISA claim). In the ERISA context, “the usual tests of summary judgment, such as 7 whether a genuine dispute of material fact exists, do not apply.” Harlick v. Blue Shield of Cal., 8 686 F.3d 699, 706 (9th Cir. 2012). 9 A. 10 Plaintiff’s Employment and MetLife Insurance Plan Plaintiff was a business systems analyst at Sutter Medical Health (Sutter). AR 11 1059. Her job was to examine and resolve Sutter’s Business system issues, test and implement 12 changes, and provide reports. AR 1070. Plaintiff’s position required six to eight hours daily of 13 using her hands and viewing computer screens, three to six hours of sitting, bending and twisting 14 the neck, and occasional walking, standing, bending, and twisting. AR 1070–73. Plaintiff’s job 15 was designated as sedentary and she did not have to lift or carry more than ten pounds. AR 1072, 16 1152. 17 Sutter provided LTD benefits through MetLife, Sutter’s insurer and claims 18 administrator. AR 1357–1418. To be disabled under MetLife’s insurance Plan (the Plan), one 19 must show during the “elimination period,” defined as beginning on the day the applicant first 20 claims disability plus 180 days thereafter, and for the next 24 months: 21 You are unable to perform with reasonable continuity the Substantial and Material Acts necessary to pursue Your Usual Occupation and You are not working in Your Usual Occupation. 22 23 AR 1379, 1382. Substantial and Material Acts means the important tasks, functions, and 24 operations of one’s “usual occupation” that cannot be reasonably omitted or modified. AR 1383. 25 B. Plaintiff Applies for LTD Benefits 26 On December 4, 2012, when she was 36 years old, plaintiff performed her last day 27 of work. AR 1126–27. Three months later, on March 5, 2013, plaintiff applied for LTD benefits, 28 2 1 contending she could no longer work because of injuries from a March 2010 car accident. Id.; 2 AR 1132. 3 On March 11, 2013, MetLife claims specialist (CS) Jacklin Roberts interviewed 4 plaintiff to determine her LTD benefit eligibility. AR 1133–34. CS Roberts asked about 5 impairments precluding plaintiff from working, and plaintiff identified a neck injury from the 6 2010 car accident. AR 1134. When asked about her daily living activities, plaintiff said she 7 drove her car, went grocery shopping, used her microwave, brushed her teeth, occasionally 8 washed dishes and washed one small load of laundry per week. AR 1134–35. In the end, 9 plaintiff stated she did not intend to return to work. AR 1136. 10 C. 11 Evidence Provided in Support of LTD Claim During the LTD application process, MetLife obtained medical records from 12 plaintiff’s health care providers: (1) Dr. Kurt Armstrong, a chiropractor; (2) Dr. Phillip Orisek, 13 an orthopedic surgeon, (3) Dr. Vinay Reddy, a doctor at the Spine and Nerve Diagnostic Center in 14 Sacramento, California; and (4) Ethelynda Jaojoco, a physical medicine and rehabilitation doctor 15 at the Spine and Nerve center. AR 1142, 1162. 16 MetLife Nurse Consultant (NC) Gayle Elliot reviewed the records, which included 17 notes from several office visits with Drs. Armstrong, Orisek, Reddy and Jaojoco. AR 1145–55. 18 An April 2010 magnetic resonance imaging scan (MRI)1 revealed three disc bulges in plaintiff’s 19 cervix.2 1146. These bulges “correlate[d] clinically for radiculopathy,3 . . . specifically . . . nerve 20 root distribution.” Id. The notes also revealed a mild loss of lumbar lordosis4 in the neutral 21 22 1 A magnetic resonance imaging scan, or “MRI,” is used to diagnose medical conditions. STEDMAN’S MEDICAL DICTIONARY 876 (27th ed. 2000). 23 24 2 In this context, the cervix is the neck. STEDMAN’S MEDICAL DICTIONARY 324 (27th ed. 2000). 3 25 26 27 28 Radiculopathy is a disorder of the spinal nerve roots. STEDMAN’S MEDICAL DICTIONARY 1503 (27th ed. 2000). 4 Lordosis is the normal curvature of a human’s lumbar and cervix. STEDMAN’S MEDICAL DICTIONARY 1032 (27th ed. 2000). Lumbar lordosis occurs when one’s spine curves more than normal. STEDMAN’S MEDICAL DICTIONARY 513370 (2014 ed.). 3 1 positions and multilevel disc bulges in the lower spine. Id. Notes from July 2010 revealed neck 2 and lower back pain with radiation into upper and lower extremities. AR 1147. August 2010 3 notes revealed a small disc herniation at C–4 to C–5 with a small protrusion from C–6 to C-7, and 4 a small annular tear in the lower spine. Id. A July 2012 electromyogram (EMG)5 revealed radiculitis at C–7. AR 1208. In 5 6 December 2012 to January 2013, plaintiff complained of headaches, neck and back pain, and 7 difficulty working due to pain. AR 1150–51. For her back and neck pain, she received regular 8 trigger pain injections and chiropractic care. AR 1152, 1243. She was also diagnosed with the 9 following conditions: neck numbness, migraines, cervical degenerative disc disease6 and 10 radiculitis, lumbar degenerative disc disease, bipolar disorder and depression. AR 1151–1152. 11 From February to May 2013, plaintiff continued to complain of headaches, neck 12 and back pain and myofascial pain.7 AR 1149, 1164. Plaintiff regularly received spine 13 adjustments and trigger injections as treatment. AR 1148–1149, 1180, 1214. By May 2013, 14 office visit notes revealed a mild cervical degenerative disc disease but no spinal cord 15 compression, spinal cord signal abnormality, or spinal cord deformity. AR 1215. After 16 reviewing the medical records, NC Elliot concluded plaintiff had the following medical 17 conditions: (1) chronic neck pain, (2) cervical degenerative disc disease, (3) myofascial pain, (4) 18 migraines, and (5) bipolar disorder and depression. AR 1160. 19 20 21 22 23 24 25 26 27 28 5 An electromyogram, or “EMG,” is a graphic representation of electric currents associated with muscular action. STEDMAN’S MEDICAL DICTIONARY 576 (27th ed. 2000). 6 As explained by a colleague, degenerative disc disease is “an arthritic process in the spine by which the vertebral discs wear down and lose fluid. This condition reduces the ability of the discs to act as shock absorbers and makes them less flexible. The loss of fluid also makes the discs thinner and narrows the distance between the vertebrae. In addition, tiny tears or cracks in the outer layer (annulus or capsule) of the disc may result, and the jellylike material inside the disc (nucleus) may be forced out through these tears or cracks, which causes the disc to bulge, break open (rupture), or break into fragments.” Watson v. Sisto, No. 07–01871, 2011 WL 5155175, at *5 (E.D. Cal. Oct. 28, 2011). 7 Myofascial pain syndrome is characterized by aching pain, stiffness and tenderness of muscles. STEDMAN’S MEDICAL DICTIONARY 1761 (27th ed. 2000). 4 1 In addition to reviewing the medical records, NC Elliot also reviewed a restrictions 2 and limitations report from Dr. Armstrong, plaintiff’s chiropractor. AR 1160–61. This report 3 stated plaintiff could sit for zero to one hour intermittently, stand for one hour intermittently, walk 4 for two hours intermittently, and could not climb, twist, bend, stoop, or reach above the shoulder. 5 AR 1161. The report also stated, however, that plaintiff could drive, make quick meals, dust her 6 house, do dishes and laundry, and do fine finger and eye/hand movements. Id.; AR 1156–57. Dr. 7 Armstrong concluded plaintiff was not capable of working. AR 1156–57. 8 9 After reviewing, NC Elliot opined the records did not make clear why plaintiff could sit only zero to one hour intermittently, stand one hour intermittently, and walk two hours 10 intermittently. AR 1160–61. NC Elliot concluded plaintiff may be capable of working her 11 sedentary level position. Id. But NC Elliot then followed up to clarify the medical record and to 12 determine plaintiff’s functionality. Id. Specifically, NC Elliot requested updated medical records 13 clarifying whether plaintiff’s bipolar disorder and depression prevented her from working. AR 14 1164. On May 16, 2013, plaintiff called MetLife and stated she claimed disability only for her 15 neck and back pains; she did not claim disability for her mental conditions. AR 1168. She stated 16 she had “always been able to work with her bipolar condition,” and had been seeing a 17 psychiatrist, Dr. Ni Ni Hla, “for years.” Id. 18 19 D. NC Elliot’s Discussion with Dr. Armstrong about Work Hardening Program On May 24, 2013, NC Elliot spoke with Dr. Armstrong about his restrictions and 20 limitations report. AR 1174–76. NC Elliot noted the report did not preclude a finding of 21 functionality, for plaintiff could drive, grocery shop, cook with a microwave, do laundry, wash 22 dishes, and take care of two children ages five and eleven. AR 1175. Further, because plaintiff 23 was younger than 40, NC Elliot explained MetLife offered return to work services, or a “work 24 hardening program,” in which MetLife would work with plaintiff’s health care providers to create 25 a successful return to work based on plaintiff’s functional capabilities. Id. Dr. Armstrong was 26 “very agreeable” to the program. Id. A month later, when MetLife explained the program to 27 plaintiff on June 24, 2013, she declined to participate. AR 1197. 28 5 1 After plaintiff declined, NC Elliot continued the review process to determine LTD 2 benefit eligibility. She called Dr. Armstrong to request updated medical records, including 3 updated restrictions and limitations reports. AR 1182, 1199. Dr. Armstrong submitted an 4 updated restrictions and limitations report materially similar to the first. AR 1204. As with the 5 first report, Dr. Armstrong noted plaintiff could not return to work indefinitely. AR 1216. NC 6 Elliot reviewed this updated report, AR 1205, and concluded it was overly restrictive, especially 7 considering Dr. Armstrong had agreed to plaintiff’s participating in the work hardening program. 8 AR 1216. NC Elliot then requested higher-level review from a MetLife medical director to 9 clarify whether plaintiff’s conditions impaired her functioning and work capacity. AR 1209, 10 11 1211. E. Referral to MetLife Medical Director for Higher Level Review 12 NC Elliot referred plaintiff’s claims to David S. Peters, M.D., a MetLife Medical 13 Director, for higher-level review. AR 1212. Based on the record, Dr. Peters concluded plaintiff 14 had “significant lumbar and cervical MRI changes in addition to chronic right cervical radiculitis 15 on EMG.” AR 1219. Despite these conditions, Dr. Peters noted plaintiff could still do 16 “shopping, driving, and childcare.” Id. In the end, Dr. Peters opined plaintiff should be capable 17 of “modified, full time (8 hour per day) work.” AR 1219–1220. This modified work would 18 consist of limiting any lifting, carrying, pushing, or pulling to ten pounds and allowing two to 19 three minute stand and stretch breaks at least every hour for comfort in addition to standard 20 morning, afternoon, and lunch breaks. AR 1220. 21 On August 8, 2013, NC Elliot reviewed Dr. Peters’ findings and concluded Dr. 22 Peters’ review was incomplete because Dr. Peters had not responded to all questions presented to 23 him. AR 1221. Accordingly, NC Elliot asked Dr. Peters to complete a further review to respond 24 “to questions posed.” AR 1221–22. On August 13, 2013, Dr. Peters’ submitted an amended 25 opinion. AR 1229. In the amended opinion, Dr. Peters opined plaintiff’s physical functional 26 limitations were due to lumbar and cervical degenerative disc disease, both of which were present 27 at the start of the elimination period and appeared to be ongoing. AR 1228. While other 28 6 1 conditions were present, such as migraines, occipital neuralgia,8 and brachial neuropathy,9 Dr. 2 Peters opined the record did not support claims that the frequency and severity of these conditions 3 would significantly limit plaintiff’s ability to perform a sedentary position with modifications. 4 AR 1228. With plaintiff’s limitations, Dr. Peters opined, “standing [and] walking should be 5 limited to twenty minutes per hour and to a daily total of 2.5 hours; and fine fingering, hand [and] 6 eye movements and repetitive upper extremity movements at waist [and] desk level should not 7 require restrictions.” AR 1228–29. Dr. Peters also opined plaintiff’s position should be limited 8 to lifting, carrying, pushing, or pulling to ten pounds and allowing two to three minute stand and 9 stretch breaks at least every hour for comfort in addition to standard morning, afternoon, and 10 lunch breaks. AR 869. As with his earlier recommendation, Dr. Peters opined plaintiff should be 11 able to return to Sutter and work eight hours with modification or participation in the vocational 12 rehabilitation or “work hardening” program. AR 1235, 1246. 13 MetLife sent copies of Dr. Peters’ reports to plaintiff and plaintiff’s medical 14 providers, Dr. Reddy, Dr. Armstrong and Dr. Jaojoco, and asked them to respond if they had any 15 comments or disagreements. AR 1229. MetLife received no responses. AR 1270. 16 F. 17 MetLife Denies LTD Benefits Claim After receiving no responses, LTD claims specialist (CS) Jacklin Roberts assessed 18 plaintiff’s file and concluded plaintiff was physically limited. AR 1249. Specifically, CS Roberts 19 concluded the medical records showed plaintiff had “lumbar and cervical MRI changes and 20 chronic right cervical radiculitis, which preclude[d] her ability for prolonged standing and 21 walking.” Id. CS Roberts further concluded plaintiff had “chronic neck and back pain,” and “any 22 significant improvement in [plaintiff’s] functionality” was unlikely. Id. CS Roberts ultimately 23 agreed with Dr. Peters’ assessment, however, that plaintiff could work with modified conditions 24 25 26 27 28 8 Occipital neuralgia, also known as “posttraumatic neck syndrome,” consists of neck pain, tenderness, and spasms resulting from neck trauma, most often of the whiplash variety. See STEDMAN’S MEDICAL DICTIONARY 599370 (occipital neuralgia), 887270 (posttraumatic neck syndrome) (Online ed. 2014). 9 Brachial plexus neuropathy is a neurological disorder, characterized by the sudden onset of severe pain in the shoulder area. STEDMAN’S MEDICAL DICTIONARY 1212 (27th ed. 2000). 7 1 but a full-time work schedule. AR 1248–49. CS Roberts referred plaintiff’s claim to vocational 2 rehabilitation consultant (VRC) Janet Walsh on September 11, 2013, to determine if plaintiff 3 could perform her “usual” occupation but with modifications. AR 1249. On September 30, 2013, 4 VRC Walsh opined plaintiff should in fact be able to perform her “usual” occupation with 5 modifications. AR 1271. That same day, CS Roberts recommended MetLife deny plaintiff’s 6 LTD claim, referencing Dr. Peters’ opinion that plaintiff could do modified work as support. AR 7 1273. MetLife again sent Dr. Peters’ report to plaintiff’s treating physicians, but again no one 8 responded. AR 1273. VRC Walsh then completed her review and also opined plaintiff should be 9 able to perform plaintiff’s “usual” occupation of sedentary work, albeit with modifications as Dr. 10 Peters opined. Id. 11 On October 1, 2013, MetLife sent plaintiff a letter denying her LTD claim on 12 grounds the medical records did not support disability from December 5, 2012, plaintiff’s last day 13 of work, through the elimination period, ending on June 3, 2013. AR 823–827, 1274, 1376. The 14 letter, relying on Dr. Peters’ opinion and report, stated MetLife’s position that plaintiff would be 15 able to perform work with the following restrictions and limitations: (1) lifting, carrying, pushing, 16 and pulling occasionally up to ten pounds; (2) changing seat positions as needed for comfort with 17 two to three minute breaks per hour; (3) limiting twisting, bending, and stooping; and (4) standing 18 and walking for only twenty minutes per hour for a 2.5 hour daily total. AR 825; see also AR 19 869, 1228-1229. 20 G. 21 Plaintiff Appeals MetLife’s Denial On March 28, 2014, plaintiff appealed MetLife’s LTD denial internally to MetLife 22 disability appeals specialist Evelyn Murphy. AR 470–72. Despite plaintiff’s express statement 23 that her disability claim was not based on her mental impairment, AR 1168, plaintiff’s attorney on 24 appeal contended her disability is based in part on “anxiety and depression” in addition to 25 “insomnia.” AR 478. 26 27 MetLife submitted the appeals record to two independent physician consultants (IPC) for review: (1) Board Certified Psychiatrist Marcus Goldman, M.D., and (2) Neil McPhee, 28 8 1 M.D., who is Board Certified in Physical Medicine and Rehabilitation and Pain Management. 2 AR 433, 469, 1321. 3 1. 4 The psychiatric IPC, Dr. Goldman, watched a video submitted in support of the Dr. Goldman Reviews Plaintiff’s Mental Conditions 5 appeal. The video included an interview of plaintiff,10 in which plaintiff discussed the impact her 6 migraine headaches, pain and other medical issues had on her functionality. AR 1325. Dr. 7 Goldman stated the plaintiff’s presentation was “grossly unremarkable” because throughout the 8 interview, plaintiff answered questions appropriately, “was appropriate in demeanor and dress, 9 was cooperative with appropriate and full range of affect, articulate [and] linear with normal 10 speech.” Id. 11 In addition to watching the video, Dr. Goldman reviewed the rest of plaintiff’s 12 LTD application records to determine whether plaintiff had functional limitations from a 13 psychiatric perspective as of December 5, 2012 and beyond. AR 429. In particular, Dr. Goldman 14 evaluated the record to determine (1) whether it supported a diagnosis of migraines, anxiety, 15 depression, and insomnia, and (2) whether such conditions restricted plaintiff’s capacity to 16 perform her sedentary job. AR 429. 17 Dr. Goldman noted that in 2012, progress notes from Dr. Reddy at the Spine and 18 Nerve Diagnostic Center revealed overall stability despite intermittent insomnia, headaches, and 19 depression. AR 429–430. By December 6, 2012, the plaintiff was doing well with no depression 20 or mood swings. Id. From January 3, 2012 to August 13, 2013, the plaintiff’s mental status was 21 “unremarkable” with no evidence of depression or mood swings. AR 430. 22 By September 2013, after the end of the elimination period and before Met Life’s 23 initial denial of her claim on October 1, 2013, plaintiff felt upset with her providers, stressed out 24 about her pain issues, and she exhibited passive suicidal thoughts. Id. A week after MetLife 25 denied plaintiff’s LTD claim, plaintiff became “labile and depressed” and exhibited suicidal 26 thinking. Id. By November 2013, a month after the claim denial, plaintiff reported stress and 27 10 28 It appears to the court the video was taken on March 24, 2014. See AR 1325. 9 1 lack of motivation with increased depression and anxiety. Id. During the MetLife appeals 2 process, plaintiff’s medical reports revealed she was depressed and anxious, had “poor” 3 cognition, exhibited suicidal thinking, and had complaints of trouble sleeping. Id. Based on these 4 observations, IPC Goldman continued to state plaintiff’s condition was “unremarkable.” Id. 5 By February 2014, plaintiff reported feeling stressed and overwhelmed. Id. As 6 IPC Goldman noted, approximately a month later, on March 12, 2014, plaintiff was diagnosed 7 with bipolar disorder and Attention Deficit Hyperactive Disorder (ADHD), after some mental 8 status decline in late 2013 and early 2014; her response to treatment at that point had been 9 minimal. AR 431. A document in plaintiff’s file rated her ability to make occupational, 10 performance, and social adjustments as “fair to poor,” with “wors[ening] concentration” Id. 11 Office visit notes also recorded plaintiff’s complaints of “constant pain” due to family stressors 12 and difficult financial situations. AR 430. 13 Based on these observations, IPC Goldman said “functional limitations” during the 14 elimination period expiring on June 3, 2013, were not supported. AR 431. Specifically he noted 15 the absence of “dedicated psychotherapy notes,” suggesting “an intensity of treatment 16 inconsistent with the degree of psychopathology purported.” AR 432. Based on the record he 17 reviewed, he noted “the mental status examinations . . . are generally unremarkable but for later 18 in 2013 and early 2014.” AR 431. He said it was unclear whether plaintiff’s increased anxiety 19 was related to “financial stress associated with denial of benefits or ongoing pain complaints.” Id. 20 Finally, he cited plaintiff’s daily activities to conclude “there is no data to support significant or 21 severe impairments in this claimant’s capacity to manage her activities . . . of daily living.” AR 22 432. 23 2. 24 Dr. McPhee, a Board Certified professional in Physical Medicine and Dr. McPhee Reviews Plaintiff’s Physical Conditions 25 Rehabilitation and Pain Management, served as the second IPC and reviewed the appeal record 26 for the following of plaintiff’s physical conditions: (1) migraine headaches; (2) jaw pain; (3) neck 27 pain due to cervical disc herniations; (4) radicular symptoms from her neck; (5) mid back and 28 chest pain; (6) low back and hip pain; (7) lumbar disk herniation and annular tear; and (8) 10 1 radicular symptoms from her lower back, “butt,” sides of her legs, calf, knees, ankles and feet. 2 AR 434. 3 Dr. McPhee opined plaintiff’s purported pain and disability was “markedly out of 4 proportion to the degree of degenerative findings on imaging and examination findings or 5 tenderness and trigger points with intact neurological function.” AR 466. In particular, 6 Dr. McPhee noted while plaintiff complained of pain before stopping work, plaintiff had a 7 documented history of “chronic neck, mid back, and low back pain with radicular symptoms that 8 were managed” since at least November 21, 2005, going back seven years before the December 5, 9 2012 start of the elimination period. AR 460–61. 10 Additionally, Dr. McPhee noted the medical records showed no change in pain 11 management after the March 8, 2010 vehicle accident or after she took leave from work on 12 December 5, 2012. AR 467. Accordingly, he concluded plaintiff could still perform work with 13 the following functional limitations: “sitting frequently with the allowance to shift positions 14 briefly for comfort, standing occasionally, walking occasionally, overhead activities occasionally, 15 lifting no more than 20 pounds occasionally and 10 pounds frequently, bending occasionally, and 16 crawling occasionally.” AR 467. Finally, Dr. McPhee noted the medical records did not support 17 a “limitation to upper extremity activities at desk level.” Id. 18 In late May 2014, MetLife sent the reports of Dr. Goldman and Dr. McPhee to 19 plaintiff’s attorney, specifically requesting that a copy be sent to plaintiff’s treating physicians, 20 and asking for a response by June 10, 2014. AR 355. When MetLife made its final decision on 21 June 16, 2014, neither counsel nor any of plaintiff’s treatment providers had responded. AR 22 1328–29. 23 H. 24 MetLife Upholds LTD Denial on Appeal After considering the additional information plaintiff submitted, and having 25 referred plaintiff’s case to two independent physician consultants, MetLife upheld its denial of 26 benefits. AR 1328. MetLife sent a letter to plaintiff’s counsel on June 16, 2014, noting although 27 plaintiff’s medical records showed she had some restrictions or limitations, she did not 28 demonstrate during the elimination period and after that she could not perform her job “with 11 1 reasonable continuity.” AR 1330. MetLife noted that because plaintiff had exhausted her 2 administrative remedies under the Plan, “no further appeals will be considered.” AR 351. 3 4 I. MetLife Reopens Record to Consider Additional Evidence On June 18, 2014, plaintiff’s counsel sent MetLife a letter expressing “surprise[]” 5 at the decision. AR 338. Counsel noted he requested an extension for plaintiff’s medical 6 providers to respond to the reports, and the first set of responses was sent on June 17, 2014, a day 7 after MetLife’s initial appeal denial, with a second set sent a week later. AR 338. MetLife then 8 considered the additional evidence. AR 32. 9 One of the additional pieces of evidence was a one-page letter, dated June 16, 10 2014, from plaintiff’s psychiatrist Dr. Ni Hla. AR 171. In the letter, Dr. Hla noted plaintiff was 11 emotionally and psychiatrically stable until June 2013, when her back pain worsened. Id. Dr. 12 Hla stated since June 2013, plaintiff has presented “impaired memory and concentration, lack of 13 motivation and interest,” and frequent “suicidal ideation.” AR 342. There were no 14 psychotherapy notes appended to the letter. See id. 15 Dr. Goldman reviewed the new information upon reopening. AR 119–20. He 16 noted plaintiff did not submit any “documented evidence of measured cognitive dysfunction, 17 active suicidal thinking with plan or intent, emergent transition to a more intense level of care, or 18 other sustained psychiatric signs that would support the need for limitations.” AR 120. Further, 19 there were no psychotherapy notes for review. Id. Dr. Goldman noted his opinion was 20 unchanged. Id. 21 A copy of Dr. Goldman’s amended report was sent to plaintiff’s counsel on July 22 25, 2014. AR 37. Appeals Specialist Evelyn Murphy requested counsel submit Dr. Goldman’s 23 amended report to plaintiff’s treating physicians for review and response by August 8, 2014, with 24 an additional fourteen days up until August 22, 2014 if requested. AR 37–38. 25 In response, on August 20, 2014, counsel submitted a two-page letter from Dr. 26 Hla, dated August 18, 2014. AR 20–28. In this letter, Dr. Hla noted since plaintiff has been 27 under her care, plaintiff has “frequently presented with evidence of depression, lack of interest, 28 and motivation, poor sleep, difficulty with her memory and concentration, social withdrawal and 12 1 isolation, having thoughts of wanting to give up or die with no intent or plan, and having frequent 2 anxiety attacks with intense worries, and having frequent emotional breakdowns from mood 3 swings.” AR 21. Dr. Hla noted the symptoms intensified after August 2013, two months after 4 the end of the elimination period. Id. Appended to this letter was a complete medical report, 5 completed by Dr. Hla, discussing plaintiff’s restrictions and limitations after the elimination 6 period. AR 23–28. 7 Evelyn Murphy reopened the case to allow for additional information, including 8 Dr. Hla’s letters and medical report. AR 18. After this review, she determined Dr. Hla’s 9 additional information did not show plaintiff’s impairment during the Plan’s elimination period, 10 which ended June 3, 2013. Id. She then sent plaintiff’s attorney a denial letter on September 4, 11 2014. Id. In the letter, Murphy stated in part, “[a]lthough therapy notes from July 2014 and 12 August 2014 were provided, they would not provide clinical evidence of an impairing psychiatric 13 condition back to the time period in review of December 5, 2012 forward.” AR 19. 14 J. Plaintiff’s Approval for Social Security Benefits after MetLife’s Denial 15 In support of her motion for summary judgment, plaintiff also has submitted a 16 copy of her Social Security Award letter, which is not in the administrative record before the 17 court. Allen Decl. Ex. 1, ECF No. 18-6. According to the letter, the Social Security 18 Administration (SSA) concluded plaintiff was disabled, beginning on December 5, 2012, the 19 same date as the start of plaintiff’s LTD elimination period, with her eligibility for benefits 20 starting in June 2013. Id. at 1. Although the SSA letter is dated September 8, 2015, id., plaintiff 21 contends she was approved for SSA benefits on August 13, 2015. Pl.’s Mot. at 14. Plaintiff has 22 not provided documentation showing the SSA’s analysis supporting its determination of 23 disability. 24 III. 25 DISCUSSION Plaintiff contends she is disabled under the terms of the Plan due to the following 26 conditions: (1) anxiety and depression; (2) insomnia; (3) migraines, (4) jaw pain; (5) neck pain; 27 (6) mid-back and chest pain; (7) low-back and hip pain; and (8) pain in the butt, side of legs, calf, 28 knees, ankles, and feet. Pl.’s Mot. at 10–11. MetLife contends plaintiff has not provided 13 1 adequate evidence showing she was precluded from performing her job, even after MetLife 2 offered modifications to accommodate her limitations. Def.’s Opp’n at 19. 3 As explained in more detail below, the court reviews the cross-claims under a 4 de novo standard, does not consider documents submitted after MetLife’s appeal denial on 5 September 4, 2014, and concludes Ms. Dorsey has not established disability under the terms of 6 the Plan. 7 A. Legal Standards 8 1. 9 ERISA provides claimants with a federal cause of action to recover ERISA plan ERISA Generally 10 benefits. 29 U.S.C. § 1132(a)(1)(B). Under Rule 52(a) of the Federal Rules of Civil Procedure, 11 each party here moves for judgment and the court, through a bench trial based on the 12 administrative record, evaluates the conflicting evidence. Kearney v. Standard Ins. Co., 175 F.3d 13 1084, 1094–95 (9th Cir. 1999). At hearing, the parties agreed the cross-motions could be 14 resolved on the administrative record and no evidentiary hearing or credibility finding by the 15 court was required. 16 ERISA specifically provides for judicial review of a decision to deny benefits to a 17 plan beneficiary. See 29 U.S.C. § 1132(a)(1)(B). It also establishes federal court jurisdiction to 18 hear such a claim. See 29 U.S.C. § 1132(e). A denial of ERISA benefits “is to be reviewed under 19 a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary 20 authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire 21 & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); see also Abatie, 458 F.3d at 963 (“De novo is 22 the default standard of review.”). If the plan grants discretionary authority, a less stringent “abuse 23 of discretion” standard is applied. Abatie, 458 F.3d at 967. “To assess the applicable standard of 24 review, the starting point is the wording of the plan.” Id. at 962–63. 25 Here, plaintiff contends after California adopted California Insurance Code section 26 10110.6 in 2012, any discretionary review was nullified, which, in effect, mandated courts to 27 apply the de novo standard of review to ERISA claims. Pl.’s Mot. at 16. Defendant also agrees 28 14 1 de novo review is the proper standard here. Def.’s Mot. at 20. The court finds de novo review is 2 the correct standard, as explained below. 3 2. 4 On January 1, 2012, California barred application of language in an employment California’s Ban on Discretionary Clauses 5 insurance plan granting discretionary authority to the plan administrator. Cal. Ins. Code 6 § 10110.6; Jahn-Derian v. Metro. Life Ins. Co., No. 13–7221, 2016 WL 1355625, at *5 (C.D. 7 Cal. Mar. 31, 2016). The law now provides, in relevant part, 8 If a policy, contract, certificate, or agreement offered, issued, delivered, or renewed, whether or not in California, that provides or funds life insurance or disability insurance coverage for any California resident contains a provision that reserves discretionary authority to the insurer, or an agent of the insurer, to determine eligibility for benefits or coverage, to interpret the terms of the policy, contract, certificate, or agreement, or to provide standards of interpretation or review that are inconsistent with the laws of this state, that provision is void and unenforceable. 9 10 11 12 13 Cal. Ins. Code § 10110.6. The statute defines “renewed” as “continued in force on or after the 14 policy’s anniversary date.” Id. A renewal of an insurance policy is significant because “[t]he law 15 in effect at the time of renewal of a policy governs the policy . . . .” Stephan v. Unum Life Ins. 16 Co. of Am., 697 F.3d 917, 927 (9th Cir. 2012). “Each renewal incorporates any changes in the 17 law that occurred prior to the renewal.” Id. Thus, any relevant changes in the statutory or 18 decisional law in force at the time the insurance policy is renewed “are read into each policy 19 thereunder, and become a part of the contract with full binding effect upon each party.” Id. 20 The Ninth Circuit recently addressed section 10110.6’s application to ERISA plans 21 and concluded de novo review is appropriate where section 10110.6 voids plan discretionary 22 clauses, affirming a majority of district court cases finding de novo review applies. Orzechowski 23 v. Boeing Co. Non-Union Long-Term Disability Plan, __ F.3d. __, No. 14–55919, 2017 WL 24 1947883, at *4 (9th Cir. May 11, 2017)11; see also Fowkes v. Metro. Life Ins. Co., No. 15–00546, 25 26 27 28 11 The court notes the Ninth Circuit has most recently decided Williby v. Aetna Life Ins. Co., No. 15–56394, 2017 WL 3482390, at *3 (9th Cir. Aug. 15, 2017), in which it held ERISA preempted California Insurance Code section 10110.6(a) to the extent it would otherwise be applicable to a “self-funded” ERISA plan, id., at *5. Williby is distinguishable from the instant case, because the Plan at issue here is not self-funded, but is an insurance policy. See AR 1358– 1418; Williby, 2017 WL 3482390, at *3 (Cal. Ins. Code § 10110.6 applied to insurance policy 15 1 2017 WL 363155, at *10 (E.D. Cal. Jan. 25, 2017); Hirschkron v. Principal Life Ins. Co., 2 141 F. Supp. 3d 1028, 1032 (N.D. Cal. 2015); but see Constantino v. Aetna Life Ins. Co., No. 12– 3 0921, 2014 WL 5023222, at *3 (C.D. Cal. Oct. 8, 2014) (abuse of discretion standard applied 4 where the benefit plan gives administrator “fiduciary discretionary authority to determine 5 eligibility for benefits.”). 6 Here, MetLife’s insurance Plan went into effect on January 1, 2011. AR 1357. 7 This same Plan was in effect on September 4, 2014, when MetLife denied plaintiff’s LTD 8 benefits on appeal. AR 18, 823. The policy “thus continued in force on or after the policy’s 9 anniversary date.” See id.; Cal. Ins. Code § 10110.6. Section 10110.6 applies here and voids any 10 grant of discretion to the Plan administrator. De novo review is the proper standard here. 11 In employing a de novo standard of review, the court “simply proceeds to evaluate 12 whether the plan administrator correctly or incorrectly denied benefits.” Abatie, 458 F.3d at 963. 13 “[T]he court does not give deference to the claim administrator’s decision, but rather determines 14 in the first instance if the claimant has adequately established that he or she is disabled under the 15 terms of the plan.” Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1295–96 (9th Cir. 2010). 16 Before applying this standard, however, the court must first decide whether it may consider 17 plaintiff’s post-appeal evidence, specifically, the September 8, 2015 SSA letter approving 18 plaintiff’s request for social security benefits. 19 20 B. Extra-Record Evidence Plaintiff requests the court consider the September 8, 2015 SSA award letter based 21 on its determination that plaintiff is disabled. Pl.’s Mot. at 19; Allen Decl. Ex. 1, 1–9. MetLife 22 requests the court disregard this evidence, contending MetLife did not have the SSA 23 determination before it when it denied plaintiff’s claim. Def.’s Opp’n at 20. 24 25 26 27 28 because “[u]nlike [Orzechowski v. Boeing]’s STD plan, the disability plans at issue in Orzechowski . . . were not self-funded; rather, they were funded by insurance policies,” and “[t]he result is a simple, bright-line rule: “if a plan is insured, a State may regulate it indirectly through regulation of its insurer and its insurer’s insurance contracts; if the plan is uninsured, the State may not regulate it.”). 16 1 When reviewing an ERISA claim, the court is ordinarily limited to the 2 administrative record the plan administrator had at the time of the benefit denial. See Abatie, 3 458 F.3d at 970. This restriction is based on the principle that federal district courts should not 4 function “as substitute plan administrators,” and that expanding the record on appeal “would 5 frustrate the goal of prompt resolution of claims by the fiduciary under the ERISA scheme.” 6 Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1472 (9th Cir. 1993) (citation omitted). 7 Where, as here, the court reviews an ERISA claim de novo, it can admit outside evidence “only 8 when circumstances clearly establish that additional evidence is necessary to conduct an adequate 9 de novo review of the benefit decision.” Mongeluzo v. Baxter Travenol Long Term Disability 10 Benefit Plan, 46 F.3d 938, 944 (9th Cir. 1995) (citation omitted). In most cases where review is 11 de novo, “additional evidence is not necessary for adequate review of the benefits decision, [and] 12 the district court should only look at the evidence that was before the plan administrator . . . at the 13 time of the determination.” Id. 14 In Mongeluzo, the Ninth Circuit concluded the district court needed to consider 15 outside evidence because after the benefits denial, the plaintiff’s doctor diagnosed plaintiff with a 16 disorder falling within the Plan’s definition of disability, the diagnosis was not available at the 17 time of disability review, and the evidence was necessary to the factual determination of 18 disability. Id. at 941–43. 19 Here in contrast, the SSA award letter is not necessary or relevant to the court’s de 20 novo review. The letter does not clarify the basis on which plaintiff is considered disabled. See 21 Allen Decl. Ex. 1, 1–9. There is no discussion of which disabling conditions support the SSA 22 award or why, such that the court could fairly and adequately determine if the SSA determination 23 supports finding plaintiff is disabled under the Plan’s terms. Id. Accordingly, the SSA letter is 24 unhelpful to “enable [the court’s] full exercise of informed and independent judgment.” Id. at 25 943; cf. Nagy v. Grp. Long Term Disability Plan for Emps. of Oracle Am., Inc., 183 F. Supp. 3d 26 1015, 1025 (N.D. Cal. 2016) (admitting SSA decision where SSA judge “made a well-reasoned 27 disability determination” and Plan’s medical expert’s credibility in dispute); Oldoerp v. Wells 28 Fargo & Co. Long Term Disability Plan, No. 08–05278, 2013 WL 6000587, at *3 (N.D. Cal. 17 1 Nov. 12, 2013) (same). In light of the sparse record, the court need not consider whether the 2 standards applicable to the determination of Social Security benefits in plaintiff’s case are 3 different from those applicable to the decision regarding benefits available to her under the 4 ERISA plan here. See, e.g., Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832-34 5 (2003). 6 7 8 9 10 11 The court will not consider the SSA Notice of Award in reviewing the merits of plaintiff’s LTD claim. C. Establishing Disability on De Novo Review As noted above, plaintiff contends she is disabled under the Plan due to multiple physical ailments as well as anxiety and depression. Pl.’s Mot. at 10–11. ERISA rules of construction govern the interpretation of the term “total disability.” 12 Wetzel v. Lou Ehlers Cadillac Grp. Long Term Disability Ins. Program, 222 F.3d 643, 646 (9th 13 Cir. 2000) (adhering to Plan’s definition of “total disability” in assessing ERISA claim); Seleine 14 v. Fluor Corp. Long-Term Disability Plan, 598 F. Supp. 2d 1090, 1099 (C.D. Cal. 2009); 15 Heighley v. J.C. Penney Life Ins., 257 F. Supp. 2d 1241 (C.D. Cal. 2003). The burden of proof is 16 on the claimant to show she is totally disabled under the Policy definition. Jordan v. Northrop 17 Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 880 (9th Cir. 2004). 18 As recounted above, to qualify for benefits under MetLife’s Plan, a claimant’s 19 “[s]ickness or injury” must have caused the claimed disability. AR 1382. Under the terms of the 20 Plan, disability means a claimant’s inability to perform her job. Id. Further, plaintiff must 21 establish her claimed disability persisted throughout the 180-day elimination period, from 22 December 5, 2012 through June 3, 2013. Id. 23 24 25 1. Plaintiff Was Able to Work throughout Elimination Period with Modifications Throughout the claims process, plaintiff and her treating physicians repeatedly 26 stated plaintiff could engage in several activities of daily living: driving, grocery shopping, 27 washing dishes, doing laundry in small loads, vacuuming, dusting the house, making quick meals, 28 and taking care of two small children ages five and eleven. AR 1136, 1174–76. Her activities 18 1 also included engaging in fine finger and eye/hand movements. AR 1156–57. Despite these 2 activities, plaintiff and Dr. Armstrong claimed she could not perform her job duties. AR 1156. 3 MetLife offered a modified position or a work hardening program to slowly acclimate plaintiff 4 back into her work. AR 1175. With accommodations in place, plaintiff would lift up to ten 5 pounds, would get two to three minute stretch breaks at least every hour, would get standard 6 morning, afternoon and lunch breaks, and would receive twenty minute standing and walking 7 breaks. AR 1220, 1228–1229. These accommodations, MetLife concluded, would allow plaintiff 8 to work a full eight hour work day. AR 1235, 1246. 9 Dr. Armstrong was “very agreeable” to the work hardening program offered 10 plaintiff with the goal of returning plaintiff to work with MetLife’s proposed accommodations, 11 AR 1175, which suggests plaintiff could perform her job, impairments aside. Cf. Matthews v. 12 Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“The mere existence of an impairment is insufficient 13 proof of disability. A claimant bears the burden of proving that an impairment is disabling.”). 14 Plaintiff contends despite her activities of daily living, she frequently complained 15 of pain due to her physical and mental ailments, as documented in her doctors’ office notes. Pl.’s 16 Opp’n at 8–9. But the court need not give special weight to a claimant’s physician’s notes, 17 Muniz, 623 F.3d at 1297, or take at face value subjective pain complaints that are inconsistent 18 with the claimant’s daily activity. Seleine, 598 F. Supp. 2d at 1102. Plaintiff’s physical 19 capabilities and her treating physician’s amenability to her return to work undermine her 20 disability claim. The court nonetheless reviews the conditions plaintiff contends support 21 disability. 22 2. 23 Plaintiff also has not established disability due to her mental conditions. During Mental Conditions do not Support Disability Claim 24 the elimination period, plaintiff specifically limited her disability claim to physical ailments, 25 disclaiming any mental disability. AR 1168. It was not until plaintiff appealed MetLife’s LTD 26 denial that she claimed disability due to mental ailments. AR 478. At that point, plaintiff relied 27 on two letters from Dr. Hla. AR 20–28, 171. But neither letter supports a disability finding. The 28 first letter states plaintiff was “emotionally and psychiatrically stable till June, 2013 when her 19 1 back pain got worse[].” AR 171. Given that the elimination period ended in early June 2013, the 2 court cannot infer plaintiff was disabled throughout the period. The second letter fares no better. 3 While it states plaintiff frequently presented evidence of “depression, lack of interest, and 4 motivation, poor sleep, difficulty with her memory and concentration, social withdrawal and 5 isolation, and having thoughts of wanting to give up or die,” it says nothing of when these 6 symptoms precluded plaintiff from working. See AR 21. To the extent the letter discusses any 7 dates, Dr. Hla states the symptoms intensified after August 2013, which is after the close of the 8 elimination period on June 3, 2013. 9 Plaintiff has not shown her mental impairments establish disability under the Plan. 10 3. 11 Plaintiff has not shown insomnia precluded her from performing her job. Any Plaintiff has not Established Her Insomnia is Disabling 12 mention of insomnia in the record characterizes it as intermittent, which is not “disabling” under 13 the Plan. AR 429–430, 1382. 14 4. 15 Plaintiff complained of migraines while she worked at Sutter. AR 172 (office visit Plaintiff has not Established her Migraines were Disabling 16 notes from March 5, 2012). Specifically, she described her condition as “dull, sharp, aching, 17 stabbing, and deep,” and occurring three times a week on average. Id. Despite this impairment, 18 plaintiff was able to exercise three to four days a week and worked nine hours a day from 19 Monday to Friday. Id. She received trigger point injections as treatment. AR 438. 20 After she stopped working, plaintiff’s migraines and the trigger point injections 21 continued. AR 454, 1149, 1151–1152. At one office visit during the elimination period, plaintiff 22 told Dr. Jaojoco at the Spine and Nerve Diagnostic Center the trigger point injections worked. 23 AR 454. Plaintiff has not shown her treatment changed or her migraines intensified to preclude 24 her from engaging in the functions of her job. Plaintiff also continued her active daily physical 25 routine that, again, undermines a disability finding. See Seleine, 598 F. Supp. 2d at 1093 26 (sedentary occupation disability claim denied where claimant was able to drive and grocery 27 shop); AR 1134–1135, 1175 (listing plaintiff’s daily activities, including driving, grocery 28 20 1 shopping, using the microwave, brushing teeth, doing one small load of laundry per week, and 2 washing dishes). 3 Plaintiff has not established disability due to migraines. 4 5. 5 Medical records show plaintiff’s jaw pain came from clenching her teeth in 6 response to the other unspecified pain she experienced. AR 467. However, nothing in the 7 records shows this intermittent pain precluded plaintiff’s daily activities; she has not shown it 8 precluded her from performing her sedentary position at work. Plaintiff has not established 9 disability due to jaw pain. 10 6. 11 Plaintiff has not Established Disability Due to Jaw Pain Plaintiff has not Established Disability Due to the Balance of Her Other Physical Conditions 12 The balance of plaintiff’s physical conditions include pain in her neck, mid-back, 13 chest, low-back, hip, butt, side of legs, calf, knees, ankles, and feet. While working at Sutter, 14 plaintiff made complaints of frequent neck pain. AR 172 (March 2012 office notes). 15 These impairments did not preclude plaintiff from working out three to four days a 16 week and working at her job nine hours a day. Id. Now, after submitting her disability claim, 17 plaintiff continues to complain of these impairments, but points to no evidence that such 18 impairments preclude her from working. Rather, the evidence tends to undermine such a finding. 19 For example, by April 2013, plaintiff notes her chiropractic appointments had been helping her 20 pain. AR 64. As with her other ailments, plaintiff’s subjective complaints were inconsistent with 21 her activities of daily living and the reasonable inferences of her ability to function well enough 22 to work. Plaintiff’s ability to drive, wash dishes, go grocery shopping, and pick up her children 23 from school leads the court to conclude she could have engaged in the activities of her sedentary 24 position, especially after MetLife offered her modifications. Plaintiff has not established 25 disability. Met Life’s denial of LTD benefits is fully supported by the record. 26 IV. 27 28 CONCLUSION The court DENIES plaintiff’s motion for summary judgment and GRANTS MetLife’s motion. 21 1 This Order resolves ECF Nos. 18 and 20. 2 IT IS SO ORDERED. 3 DATED: August 28, 2017. 4 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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