White v. Coblentz, Patch, Duffy & Bass LLP Long Term Disability Insurance Plan et al

Filing 85

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Magistrate Judge Bernard Zimmerman on 6/24/2011. (bzsec, COURT STAFF) (Filed on 6/24/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PATRICIA WHITE,

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Plaintiff(s),
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v.
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COBLENTZ, PATCH AND BASS LLP)
LONG TERM DISABILITY
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INSURANCE PLAN, et al.,
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Defendant(s).
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)
)

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No. C 10-1855 BZ

FINDINGS AND CONCLUSIONS

While working as a legal secretary at Coblentz, Patch,

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Duffy & Bass LLP, plaintiff Patricia White participated in an

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ERISA welfare benefit plan (the “Plan”) sponsored by Coblentz

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and insured by Prudential Insurance Company of America.1 In

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this action, plaintiff claims that Prudential’s denial of her

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long-term disability benefits was unlawful because she was

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///

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This Ruling constitutes the findings of fact and
conclusions of law required by FRCP 52.

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disabled under the “any occupation” standard of the Plan.2

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I.

BACKGROUND

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Plaintiff’s medical problems began in November 1999 when

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she stopped working at Coblentz due to pain in her hands,

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wrists, forearms, and elbows.

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plaintiff returned to work on a part-time schedule, but her

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pain reemerged and she stopped working permanently.

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Plaintiff filed a claim for long-term disability benefits

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under the “own occupation” standard of the Plan.

Several months later,

Prudential

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approved plaintiff’s claim and she received benefits from

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March 2000 through April 2004.

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plaintiff’s benefits as of May 2004 based on a medical

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evaluation it conducted.

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but Prudential upheld its determination that she was no

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longer disabled.

Prudential then terminated

Plaintiff appealed this decision,

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In 2005, plaintiff filed a lawsuit in this court

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claiming that Prudential’s termination of her benefits was

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improper.

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the appropriate standard of review was de novo review.

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denying both parties’ cross motions for summary judgment,

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Judge Jenkins conducted a short bench trial in March 2007.

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He analyzed plaintiff’s medical history and the conflicting

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medical opinions regarding her condition, and concluded that

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plaintiff “has demonstrated that she is disabled under the

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terms of the Plan as to her ‘own occupation’ of legal

The Honorable Martin J. Jenkins first ruled that
After

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All parties have consented to my jurisdiction for all
proceedings including entry of final judgment, pursuant to 28
U.S.C. § 636(c).
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secretary and is entitled to LTD benefits from May 1, 2004

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through [March 2005].”

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Judge Jenkins did not reach the issue of whether plaintiff

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was disabled under the terms of the Plan as to “any

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occupation” which would allow her to receive benefits beyond

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March 2005.

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Administrative Record (AR) 508.

After Judge Jenkins’ decision, plaintiff filed a claim

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with Prudential to continue her benefits under the “any

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occupation” standard.

Prudential denied this claim in May

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2008 and also denied plaintiff’s subsequent appeals.

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April 2010, plaintiff filed this lawsuit alleging that

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Prudential's decision to deny her benefits under the "any

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occupation" standard was unlawful under ERISA.

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II.

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In

ANALYSIS
A challenge to the denial of benefits under an ERISA

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plan is reviewed de novo “unless the benefit plan gives the

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administrator or fiduciary discretionary authority to

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determine eligibility for benefits or to construe the terms

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of the plan.”

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101, 115 (1989).

Here, both parties agree that de novo

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review applies.

Under this standard, the court "does not

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give deference to the claim administrator's decision, but

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rather determines in the first instance if the claimant has

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adequately established that he or she is disabled under the

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terms of the plan.”

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F.3d 1290, 1295-96 (9th Cir. 2010).

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review is limited to the evidence contained in the

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administrative record and extrinsic evidence can only be

Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

Muniz v. Amec Const. Mgmt., Inc., 623

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Generally, the court’s

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considered under certain limited circumstances.

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Northwest Airlines Pension Plan for Contract Employees, 484

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F.3d 1211, 1217 (9th Cir. 2007).

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Opeta v.

Accordingly, to prevail in this action, plaintiff must

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establish that she was disabled under the “any occupation”

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standard of the Plan.

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disabled when due to sickness or accidental injury she is (1)

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not able to perform for wage or profit the material and

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substantial duties of any job for which she is reasonably

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fitted by her education, training or experience; (2) not

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working at any job for wage or profit; and (3) under the

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regular care of a doctor.

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the entire administrative record in determining whether

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plaintiff was disabled, the parties agree that the relevant

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time period on which the Court should focus, is from March 3,

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2005 (when plaintiff became eligible for benefits under the

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"any occupation" standard) to May 22, 2008 (when Prudential

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first denied plaintiff's claim for benefits under that

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standard).

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The Plan provides that a claimant is

AR 1203.

While the Court reviews

See Docket No. 83 at 10-13.

A threshold issue is the extent to which Judge Jenkins’

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previous findings and conclusions apply to this lawsuit.

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Prudential is correct that I cannot automatically rule that

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plaintiff is disabled based on Judge Jenkins' earlier

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decision because the current dispute is for a different time

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period and requires a determination under the "any

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occupation" standard rather than the "own occupation"

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standard.

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decision is immaterial.

But this does not mean that Judge Jenkins'
Judge Jenkins ruled after thoroughly
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reviewing plaintiff’s medical condition and functional

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capacity from 1999 to 2005 and neither party appealed from

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his ruling.

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already been litigated by the parties, there is no reason for

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me to revisit those issues.

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and conclusions as they relate to the "own occupation"

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standard, become the starting point for my analysis.

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as of March 2005, it is established that plaintiff had a

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repetitive stress injury in her upper extremities that

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limited her functional capacity and prevented her from

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working as a legal secretary.

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Court are whether after March 2005 plaintiff's medical

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condition changed and whether she could work in any

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occupation with her condition.

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Because many of the issues present here have

Rather, Judge Jenkins' findings

Thus,

The questions now before the

In support of her claim, plaintiff submitted medical

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documentation to Prudential that she argues shows that her

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functional capacity remained limited after 2005 and prevented

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her from working in any occupation.

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from Dr. Dickie Hill, a licensed osteopathic physician and

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surgeon, whom plaintiff consulted on several occasions in

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December 2009 and January 2010.

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and reviewing her medical records, Dr. Hill explained that

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plaintiff’s soft tissue pain has remained chronic and

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“exceed[s] the ability of her body to recover” from such

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pain.

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soft

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///

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///

AR 381.

One medical report is

After examining plaintiff

Dr. Hill concluded that because plaintiff’s

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tissue problems could flare up and cause excruciating pain

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with just the limited use of her upper extremities, she was

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disabled from working in any occupation.

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Id.3

Additionally, plaintiff consulted with Dr. Mohinder

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Nijjar in December 2009.

Dr. Nijjar, a board certified

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orthopedic surgeon, reviewed plaintiff’s medical history and

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physically examined her.

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about plaintiff’s condition having not changed since 2005,

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his other conclusions are ambiguous.

While Dr. Nijjar was definitive

It is not clear whether

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his medical opinion is that plaintiff is unable to work only

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in her “own occupation” or in “any occupation.”

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401.

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earlier opinions that plaintiff is unable to work as a

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secretary and lists reasons why she cannot work in this

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capacity.

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that (1) plaintiff experiences moderate pain after 30 to 45

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minutes of sitting, walking, or standing; (2) “there is no

See AR 400-

At one point in Dr. Nijjar’s report, he agrees with

Id.

But in his list of reasons, Dr. Nijjar writes

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Prudential objects to the admission of Dr. Hill's
report, arguing that his medical practice focuses mainly on
cosmetic procedures and there "is no evidence that he has any
particular background or experience treating repetitive stress
disorders, fibromyalgia, or arthritis." Docket No. 39 at 10.
In the Ninth Circuit, evidence outside of the administrative
record may be considered in limited circumstances, such as when
issues arise about the credibility of medical experts. See
Opeta, 484 F.3d at 1217. Because Prudential has raised such an
issue, the Court finds that it is necessary to consider Dr.
Hill's supplemental declaration which explains his medical
background. In this declaration, Dr. Hill testifies that he is
the primary care physician for almost 1200 active patients and
he spends less than 1 percent of his time performing cosmetic
procedures. Docket No. 43 at ¶ 12. Further, he testifies that
he has treated hundreds of patients with repetitive stress
disorders and fibromyalgia. Id. Based on this testimony,
Prudential's objections with respect to Dr. Hill's report are
OVERRULED.
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job provided” where she would only be required to work for 30

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to 45 minutes at a time; and (3) plaintiff “needs to use both

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upper extremities for most of the work required, and without

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that consideration, I think the patient is unable to be fully

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employed with the condition of her neck and upper

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extremities.”

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Id.

Plaintiff also relies on Dr. Alan Zacharia's June 2006

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declaration.

Of the various medical reports in the record, I

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found his the most helpful.

Dr. Zacharia was the jointly

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appointed orthopedic evaluator who examined plaintiff in 2001

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for her worker's compensation claim.

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that plaintiff was a medically qualified injured worker due

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to the repetitive stress injury in her upper extremities and

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recommended that she rest until her injury became

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asymptomatic.

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for such stress injuries to "persist longer than three to

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five years because people, over an extended period of time,

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develop protective self-modification protocols and learn to

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avoid the kinds of activities that exacerbate the condition."

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AR 710.

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his medical opinion, explaining that while most patients

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adapt to their condition and are able to return to work,

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"there are a significant number who cannot return to work"

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and plaintiff's ability to work will depend on the frequency

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and intensity of her flare-ups and whether or not there are

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limitations.

AR 709-10.

In 2001, he concluded

Dr. Zacharia noted that it is rare

Dr. Zacharia's 2006 declaration further clarified

Docket

No. 28-3 at ¶ 15.4

Dr. Zacharia’s

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Prudential objects to Dr. Zacharia's 2006 declaration
because it is not in the administrative record and his 2001
report, when he actually examined plaintiff, is more reliable.
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declaration also reiterated his clinical findings which

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showed through x-rays that plaintiff had problems associated

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with degenerative changes in her cervical anatomy and with

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arthritic bone spurs on her cervical vertebrae (called

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“foraminal impingement”).

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likely to worsen with age, and that when combined with

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repetitive motions, such as during work, they cause pain in

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her extremities.

He noted that these problems are

Id. at ¶¶ 4-7.

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Plaintiff’s medical documentation included medical notes

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from her doctor visits in Italy (where she moved in 2005) and

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her 2010 letter to Prudential outlining her medical condition

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and functional capacity.

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that she did not receive consistent treatment from doctors

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with respect to her arm pain, but she did consult Italian

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medical professionals occasionally in 2006 and 2007 and

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sometimes complained about pain in her upper extremities

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during these consultations.

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to Prudential, Plaintiff explains that her activity level

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remains minimal due to the constant pain she is experiencing.

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AR 388.

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activity, especially with her arms, may cause a flare-up that

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would once again result in excruciating pain and swelling

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which may take weeks or months to recover from.

Plaintiff’s records from Italy show

See AR 511-539.

In her letter

Her biggest concern is that even the slightest

Id.

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This objection is OVERRULED. Regardless of whether it was
plaintiff's or Prudential's fault for the declaration not being
included in the administrative record, Prudential was aware of
about the declaration and Dr. Zacharia's explanatory testimony
because the declaration was filed (though not considered) in
the earlier action before Judge Jenkins.
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Plaintiff contends that it is this pain and these concerns

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that prevent her from working in any job.

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Id.

Having reviewed the record, I find that plaintiff has

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shown that her medical condition has not improved since 2005

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as she still suffers from a repetitive stress injury to her

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upper extremities.

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use her arms, this limited activity may later result in

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flare-ups that cause her debilitating pain, such as the time

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in 2000 when her return to work resulted in six months of

Although plaintiff is at times able to

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intensive treatment.

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her condition prevents her from working in any occupation.

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The record also contains evidence that

Prudential's arguments against plaintiff's showing are

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not persuasive.

It first relies on the medical reports of

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two doctors it hired to review plaintiff's file.

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reports fail to provide a comprehensive review of plaintiff’s

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medical condition because they do not address the issues and

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concerns raised by plaintiff’s doctors.

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of the reasons Judge Jenkins ruled in favor of plaintiff in

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the earlier action, Prudential continues to employ the same

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practice.

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[Prudential’s medical reviewer] never acknowledges or

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reconciles several key pieces of evidence with his opinion

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that Plaintiff can perform certain activities.

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Dr. Stevens never acknowledges Plaintiff’s attempt to return

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to work for twenty hours per week and the resulting flare-up

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and six months of intensive treatment...”).

See e.g., AR 507 at ¶ 73.

Both

Though this was one

(“Dr. Stevens

Specifically,

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After Prudential received Dr. Hill’s and Dr. Nijjar’s

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reports, it hired Dr. Ephraim Brenman to conduct a medical

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review of plaintiff’s file.

Rather than addressing

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plaintiff’s doctors’ concerns about her medical condition,

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Dr. Brenman simply concluded that plaintiff’s claim was

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baseless because it consisted of mainly self-reported

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complaints without any clinical findings to support them.

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376-77.

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restrictions or limitations in terms of the ability to sit,

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stand, walk, reach, lift, carry, and perform repetitive upper

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extremity activities”.

AR

Dr. Brenman found that the “claimant has no

AR 377.

Dr. Brenman did not attempt

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to explain why Dr. Hill or Dr. Nijjar’s conflicting

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conclusions, that plaintiff could not perform these

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activities, were wrong.

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not acknowledge that Judge Jenkins specifically ruled that

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plaintiff had a limited functional capacity in 2005.

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Jenkins’ decision was based on previous functional capacity

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examinations that found plaintiff did have physical

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restrictions, such as her being unable to type for longer

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than ten minutes.

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conducting a physical examination, Dr. Chu concluded that

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plaintiff suffers from repetitive stress injury and may have

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difficulty reaching in all directions and with gross and fine

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manipulation).

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examiners had noted that plaintiff's extremities were swollen

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which is objective evidence that she did have some form of

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stress injury.

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plaintiff's former treating physician, remarked that on

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February 28, 2005 he observed plaintiff "with very

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significant pain, swelling, and warmth of the upper one half

Even more troubling, Dr. Brenman did

Judge

AR 507; see also AR 878-89 (after

Nor did Dr. Brenman acknowledge that previous

See, e.g., AR 712 (Dr. William Billings,

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of both forearms"); AR 565 (Dr. Billings reported in May 2004

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that he has treated plaintiff actively since 2000 for

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bilateral upper extremity pain, swelling, muscle firmness,

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and dysfunction); Zacharia Declaration at Docket No. 28-3.

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attach little weight to Dr. Brenman’s report, since it

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ignores these findings and conclusions.

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The same is true for Dr. Trenton Gause's 2008 medical

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review of plaintiff's file.

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plaintiff has a mild impairment that is not likely to

Dr. Gause concluded that while

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improve, she "can use her hands for reaching, grasping,

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gripping, holding, punching, and seizing in an unrestricted

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fashion."

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why other doctors determined that plaintiff had a limited

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functional capacity and never addressed Judge Jenkins holding

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that she could not work as a legal secretary because she

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could not perform these very activities (i.e. reaching,

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grasping, gripping, etc.).5

AR 472-73.

Dr. Gause made no attempt to explain

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Prudential also fails to support its position that

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“clinical findings” such as “functional examination findings”

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are necessary for plaintiff to prevail on her claim.

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377.

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which governs the agreement between plaintiff and Prudential,

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that requires such “clinical findings.”

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District have previously held that insurer defendants in

See AR

Prudential does not point to any language in the Plan,

Courts in this

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Dr. Brenman only charged Prudential $1,023.75 for his
entire review of plaintiff's medical file and a number of
litigation records. AR 363. Dr. Gause's review only cost
Prudential $1,155.00. AR 463. Considering that plaintiff's
file consisted of about 10 years' worth of documents, these low
charges suggest that the reviews may have been less than
thorough.
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ERISA actions cannot deny claims based on standards that are

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not contained in the policy.

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Casualty Co., 1997 WL 88374 at *4 (N.D. Cal. 1997)(holding

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that the defendant insurer could not exclude plaintiff’s

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ERISA claim for lack of objective medical evidence unless

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that standard was clearly articulated in the policy).

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Moreover, as highlighted earlier, there were clinical

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findings in 2004 and 2005 and there is no indication that

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plaintiff's condition has drastically changed to the point

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See e.g., Duncan v. Continental

that such findings are now irrelevant.
Prudential criticizes plaintiff’s medical evidence,

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claiming that the only clinical findings are the swellings

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observed by several doctors.

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findings and does not explain why it did not conduct its own

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physical examination of plaintiff.

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Prudential has specifically reserved the right to physically

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examine plaintiff “as often as is reasonable.”

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Notably, when evaluating plaintiff’s “own occupation” claim,

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Prudential required plaintiff to submit to physical

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examinations, including a functional capacity examination.

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If Prudential believed that plaintiff’s subjective complaints

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after March 2005 were false, it could have again required her

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to submit to such procedures.

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overlook plaintiff’s complaints and her doctor’s observations

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and now argues that plaintiff’s claims are not supported by

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“functional findings.”

Prudential does not deny these

Under the Plan,

AR 1214.

Instead, Prudential chose to

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The reality in this case is that plaintiff’s medical

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condition is interrelated to her subjective complaints of

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pain, which is not grounds for rejecting her claim.

In

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Saffon v. Wells Fargo & Company Long Term Disability Plan,

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the Ninth Circuit discussed the relevance of subjective pain

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by referring to its previous opinions on the topic in Social

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Security disability cases.

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2008)(noting that “individual reactions to pain are

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subjective and not easily determined by reference to

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objective measurements”); see also Patrick v. Hewlett-Packard

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Co. Emp. Benefits Org. Income Protection Plan, 638 F.Supp.2d

522 F.3d 863, 872-73 (9th Cir.

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1195, 1215 (S.D. Cal. 2009)(ERISA insurer's approach of

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"disregarding subjective evidence of pain is disapproved in

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Ninth Circuit precedent")(internal citations and quotations

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omitted).

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“pain need not be corroborated by objective medical findings,

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but some impairment must be medically ascertained.”

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e.g., Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir.

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1991).

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doctors, such as Dr. Zacharia, Dr. Billings, Dr. Chu, Dr.

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Nijjar, and Dr. Hill, explain to Prudential that she suffers

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from a repetitive stress injury to her upper extremities.

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Thus, an “impairment [has been] medically ascertained” by

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medical professionals and the concern that plaintiff does not

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suffer from any medical problem is negated.

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further requirement that plaintiff’s subjective pain be

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corroborated by objective evidence.

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In the Social Security context, the claimant’s

That is the case here.

See

Plaintiff has had multiple

There is no

Prudential’s other arguments similarly miss the mark.

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While Prudential is correct that the Plan requires plaintiff

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to be under the regular care of a doctor, this does not lead

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to the denial of plaintiff's benefits.

Plaintiff followed

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Dr. Zacharia's medical advice that the most important part of

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her treatment was to rest until her symptoms went away.

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any event, plaintiff still consulted with doctors

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periodically between 2005 and 2008, even while she was in

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Italy.

In

To counter plaintiff's assertion that she cannot work in

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any occupation, Prudential points to the vocational

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assessment performed by its vocational rehabilitation

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specialist in May 2008.

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that plaintiff may work in various sedentary positions, such

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as the occupation of legal secretary.

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assessment is not persuasive as it is based on Dr. Gause's

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conclusion that plaintiff does not have any physical

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restrictions besides not being able to carry more than 20

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pounds.

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Jenkins’ earlier ruling that plaintiff could not work as a

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legal secretary.6

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AR 1038.

Prudential’s specialist concluded

AR 1038-39.

But this

The assessment also does not address Judge

Based on this record, I find that plaintiff's medical

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condition did not materially change after Judge Jenkins'

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ruling.

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severe pain in her extremities, and, of equal importance, she

Plaintiff's repetitive stress injury causes her

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The only other vocational assessment conducted after
March 2005 was performed by the Social Security Administration
(SSA) in May 2005. While the plaintiff urges the Court to
adopt the SSA's finding of disability, the Court may only use
it as evidence in a de novo review. The SSA decision is based
on a different disability standard and concentrated on
plaintiff's degenerative disc disease and not her repetitive
stress injury. The Court, however, takes into account the
SSA's conclusion that plaintiff could not meet the demands of
basic work related activities on a sustained basis. AR 769.
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faces the significant danger that limited activity may cause

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her symptoms to flare-up and force her to deal with even more

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debilitating pain.

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that she could not work in any occupation for which she was

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reasonably fitted by her education, training or experience

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and conclude that plaintiff's termination decision was

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unlawful.
The last issue concerns plaintiff's separate claim for

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Due to this medical condition, I find

prejudgment interest at a rate of ten percent pursuant to

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California Insurance Code § 10111.2.

Defendant argues that

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plaintiff's Section 10111.2 claim is preempted by ERISA,

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while plaintiff counters that it falls under the ERISA

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savings clause, 29 U.S.C. § 1144(b)(2)(A).

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however, concedes that this District has previously addressed

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this issue and ruled that Section 10111.2 is preempted by

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ERISA.

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Disability Plan, 2010 WL 140384 at *4 (N.D. Cal. 2010)("In

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sum, allowing plaintiff to proceed with a state law claim

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under Section 10111.2 would effectively impose a mandatory

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prejudgment interest rate of 10% on successful ERISA claims,

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expanding the scope of ERISA damages and supplementing the

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ERISA enforcement remedy.

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by [ERISA]"); Minton v. Deloitte & Touche USA LLP Plan, 631

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F.Supp.2d 1213, 1220 (N.D. Cal. 2009).

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decisions and it is immaterial that plaintiff's Section

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10111.2 claim was separately pled.

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10111.2 claim is preempted by ERISA.

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///

Plaintiff,

See, e.g., Turnispeed v. Educ. Mgmt. LLC's Emp.

Therefore, the claim is preempted

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I agree with these

Thus, plaintiff's Section

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III. CONCLUSION
For the foregoing reasons, I conclude that plaintiff is

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disabled under the terms of the Plan as to "any occupation."7

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As requested by plaintiff, the parties are ORDERED to meet

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and confer about the remaining issues in this matter, such as

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the amount of benefits owed and the appropriate rate of

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interest to be applied under ERISA.

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joint proposal for a judgment consistent with this Order by

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July 20, 2011.

The parties shall file a

If the parties are unable to reach a complete

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agreement after meeting and conferring, they may file

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separate proposals regarding the issues still in dispute.

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Dated: June 24, 2011

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Bernard Zimmerman
United States Magistrate Judge

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G:\BZALL\-BZCASES\WHITE V. COBLENTZ PATCH et al\FINAL ORDER.wpd

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As explained earlier, defendant's objections to Dr.
Hill's declaration and Dr. Zacharia's declaration are
OVERRULED. To the extent that either party objects to other
submitted evidence that was not contained within the
administrative record, those objections are GRANTED. The Court
finds that such unnecessary evidence does not fall within the
limited circumstances outlined by the Ninth Circuit in which
evidence outside the administrative record may be considered in
a de novo review. See Opeta, 484 F.3d at 1217.
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