Stout v. Hartford Life and Accident Insurance Company et al

Filing 62

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 50 MOTION FOR JUDGMENT AND GRANTING IN PART PLAINTIFFS 57 CROSS-MOTION FOR JUDGMENT. (ndr, COURT STAFF) (Filed on 8/28/2013) Modified on 8/28/2013 (cp, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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4

KATHLEEN STOUT,
Plaintiff,

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No. C 11-6186 CW

v.
HARTFORD LIFE AND ACCIDENT INS.
CO. and AMAZON.COM HOLDINGS, INC.
LONG TERM DISABILITY PLAN,

ORDER DENYING
DEFENDANTS’ MOTION
FOR JUDGMENT AND
GRANTING IN PART
PLAINTIFF’S CROSSMOTION FOR
JUDGMENT (Docket
Nos. 50 & 57).

Defendants.
________________________________/

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United States District Court
For the Northern District of California

Plaintiff Kathleen Stout moves for judgment on her claims for
11
disability benefits under the Employee Retirement Income Security
12
Act (ERISA).

Defendants Hartford Life and Accident Insurance

13
Company and Amazon.com Holding, Inc. Long Term Disability Plan
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cross-move for judgment.

After considering the parties’

15
submissions and oral argument, the Court grants in part and denies
16
in part Plaintiff’s motion for judgment, denies Defendants’ cross17
motion for judgment, and remands Plaintiff’s claim to the plan
18
administrator to determine whether Plaintiff is eligible for
19
benefits under the “any occupation” standard.
20
FINDINGS OF FACT
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The parties have agreed that the documents submitted with
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Plaintiff’s motion will serve as the administrative record (AR) in
23

this case.1

These findings of fact are based on that record.

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25
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The Court notes that the AR is extremely disorganized. Many of
the documents included in this record are incomplete, unlabeled, and
undated and the parties have failed to provide a useful account of when,
where, or by whom most of these documents were created. Nevertheless,
because the parties have chosen to rely on this record, the Court is
forced to do so, as well.

1

I.

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Plaintiff’s Employment History & Disability Diagnoses
In 2008, Plaintiff was hired by Amazon.com to work as a
AR 390.2

3

senior technical program manager in Seattle, Washington.

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In that role, she oversaw a team of software engineers tasked with

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collecting and analyzing customer data from Amazon’s website and

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sharing that data with company executives.

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of her team lived in both Seattle and Romania, Plaintiff often

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worked long hours and traveled frequently to supervise them.

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She regularly worked ten- to twelve-hour days and was expected to

United States District Court
For the Northern District of California

10

be on call even when she was not working.

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Id.

Because members

Id.

Id.

Beginning in early 2009, Plaintiff began to experience bouts

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of fatigue and diarrhea as well as episodes of dry eyes and dry

13

mouth.

14

coworkers, she began to make uncharacteristic mental errors during

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this period, including simple math and spelling mistakes, and

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would occasionally lose her train of thought.

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399.

18

worsened.

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disability benefits a few weeks later.

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Id. at 1898-99.

According to her friends, family, and

Id. at 390, 395-96,

Plaintiff stopped working in March 2009 after her symptoms
Id. at 149.

Plaintiff was granted short-term
Id. at 149.

In May 2009, Plaintiff visited Seattle’s Pacific Medical

21

Center to seek a diagnosis.

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Dr. John Yuen, concluded that Plaintiff “may either have systemic

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lupus erythematosus or Sjogren’s syndrome.

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conditions can be associated with severe fatigue, arthralgia, and

25

some degree of cognitive disturbance, such as poor concentration

26

and memory.”

Id. at 1894.

Id. at 1894.

Her treating physician,

Both of these

Although Plaintiff began taking

27
28

2

All page citations are to “KS” Bates-stamp numbers.

2

1

medication prescribed by Dr. Yuen, her symptoms persisted.

2

1891.

3

Id. at

Later that summer, Plaintiff moved to Palo Alto, California,

4

to begin treatment with a new rheumatologist, Dr. Christine

5

Thornburn, and an internist, Dr. Henry Thai, at the Palo Alto

6

Medical Foundation.

7

additional lab testing which confirmed that she was likely

8

suffering from Sjogren’s syndrome or a similar autoimmune disease.

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Id. at 1511-13.

Id. at 403, 1438-87.

There, she underwent

Examinations of Plaintiff’s sleeping habits a few

United States District Court
For the Northern District of California

10

months later, in early 2010, indicated that she was also suffering

11

from obstructive sleep apnea.

12

Although she was prescribed additional medication, Plaintiff

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continued to describe feelings of fatigue and cognitive impairment

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to Drs. Thornburn and Thai over the next several months.

15

1438-90.

16

Id. at 990, 1532-34, 1626-29.

Id. at

In March 2010, Plaintiff began a course of cognitive

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behavioral therapy with Dr. Patrick Whalen at Stanford University.

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Id. at 1559-73.

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health, she continued to report various physical ailments during

20

this period, as well.

21

that during one session Plaintiff said that “fatigue, feeling like

22

she has the flu most hours most days is by far the most

23

debilitating symptom related to her inability to work.”

24

1561.

25

report similar feelings over the course of the next several

26

months.

27
28

While these sessions focused on her mental

See id.

Dr. Whalen noted, for instance,

Id. at

According to Dr. Whalen’s reports, Plaintiff continued to

Id. at 739-43.

In August 2010, Plaintiff met with Dr. Peter Karzmark, a
Stanford neuropsychologist.

Id. at 1414-20.
3

Dr. Karzmark

1

conducted a series of tests to measure Plaintiff’s cognitive

2

abilities in the following areas: (1) concentration; (2) learning

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and memory; (3) problem solving, reasoning, executive abilities,

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and intelligence; (4) language, academic, visual-spatial, motor,

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and sensory-perceptual abilities; and (5) personality.

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test results revealed that, although Plaintiff’s academic

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abilities were “above average,” her “overall performance on the

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battery [of tests] was at the 30th percentile” for “someone of her

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gender, age, and education level.”

United States District Court
For the Northern District of California

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13
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Id. at 1419.

Id.

The

Based on these

results, Dr. Karzmark concluded,
It is my overall impression that this patient’s
cognitive functioning has declined to a modest extent
from baseline. Sjogren’s disease has been associated
with cognitive impairment, although this has not been
well studied. Her depression may also account for some
portion of her cognitive limitation.
Id. at 1419-20.

15
The following month, in September 2010, Plaintiff began
16
treatment with a new rheumatologist, Dr. Eliza Chakravarty, at
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Stanford Hospital.

Id. at 725-27, 751-52.

Dr. Chakravarty’s

18
examination reports indicate that Plaintiff was still experiencing
19
physical symptoms during that period, including “[i]ncreased
20
fatigue” and muscle aches.

Id. at 743.

21
Dr. Chakravarty referred Plaintiff to a neurologist to assess
22
Plaintiff’s cognitive impairment.

Id. at 754.

Reports from that

23
neurologist, Dr. Elias Aboujaude, indicate that Plaintiff was
24
still reporting fatigue, “cognitive difficulties,” and “balance
25
and coordination problems” through at least February 2011.
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736-38.
27
28
4

Id. at

1

II.

2

Hartford’s Disability Policy
Plaintiff was insured under Hartford’s Group Policy No. GLT-

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675334, which was issued to Amazon.com Holdings, Inc.

4

The Policy provides Amazon employees with coverage for long-term

5

disability (LTD) benefits and grants Hartford “full discretion and

6

authority to determine eligibility for benefits and to construe

7

and interpret all [of the Policy’s] terms and provisions.”

8

114-16, 130.

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Id. at 114.

Id. at

The Policy provides two standards for determining whether an

United States District Court
For the Northern District of California

10

employee is “disabled” and qualifies for LTD benefits.

11

131.

12

applies to LTD claims during the first two years after they are

13

filed.

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disabled if he or she is unable to perform an essential duty of

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his or her own occupation.

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employee’s own occupation is defined as the employee’s job “as it

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is recognized in the general workplace,” including comparable

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positions with other employers.

19

Id. at

The first, which is known as the “own occupation” standard,

Id.

Under this standard, the employee is considered

Id.

Under this standard, the

Id. at 134.

The second standard, known as the “any occupation” standard,

20

governs the employee’s eligibility for LTD benefits beyond the

21

first two years of the claim.

22

the employee is only eligible for LTD benefits if he or she is

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unable to perform an essential duty of any occupation for which he

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or she is “qualified by education, training or experience” and

25

which pays more than the employee would earn from benefits alone.

26

Id. at 130.

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beyond the first two years of a claim, the employee must either be

Id. at 131.

Under this standard,

In other words, to continue receiving LTD benefits

28
5

1

unqualified for or unable to perform any occupation that would pay

2

more than he or she would otherwise receive in benefits.

3

III. Plaintiff’s Claim & Hartford’s Investigation

4

Plaintiff initiated her claim for LTD benefits in July 2009,

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shortly after she received her initial diagnosis from Dr. Yuen.

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Id. at 164-65, 286-87.

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investigation into her claim by interviewing her about her

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symptoms and asking her to provide supporting medical records.

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Id. at 164-65.

That same month, Hartford opened an

Plaintiff submitted an attending physician’s

United States District Court
For the Northern District of California

10

report from Dr. Yuen summarizing his diagnosis.

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The report recommended that Plaintiff be limited to five hours of

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sitting, one hour of standing, and one hour of walking per day.

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Id.

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Id. at 336-37.

On September 23, 2009, Hartford preliminarily approved

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Plaintiff’s LTD claim.

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benefits until September 30, 2009 but asked her to submit

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additional information, including an attending physician’s report

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from her new rheumatologist, Dr. Thornburn, so that it could

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investigate whether to extend her LTD benefits beyond that date.

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Id.

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Id. at 175, 332-33.

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experiencing fatigue, “musculoskeletal pain,” and “poor

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concentration” and had recently tested positive for other

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Sjogren’s syndrome indicators.

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report, like Dr. Yuen’s, recommended that Plaintiff be limited to

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five consecutive hours of sitting, one hour of standing, and one

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hour of walking per day.

Id. at 275-78.

It offered to pay her LTD

Hartford received Dr. Thornburn’s report on October 8, 2009.
The report stated that Plaintiff was still

Id. at 332.

Id. at 333.

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6

Dr. Thornburn’s

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In mid-October 2009, after reviewing Dr. Thornburn’s initial

2

report, Hartford asked Dr. Thornburn to complete a “Behavioral

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Functional Evaluation” form describing Plaintiff’s limitations in

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greater detail.

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completed form on October 30, 2009.

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indicated that Plaintiff was “fearful of making mistakes in a job

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which previously was not a problem for her.”

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Thornburn also noted that “short deadlines will trigger her to

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worsen [sic] as well when previously she could thrive under such

United States District Court
For the Northern District of California

10

circumstances.”

Id. at 175-76, 874.

Dr. Thornburn returned the
Id. 175-76.

On it, she

Id. at 874.

Dr.

Id.

11

A few months later, in January 2010, Hartford hired an

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investigative firm to conduct surveillance of Plaintiff and

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document her physical abilities.

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conducted six full days of surveillance between February and April

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2010.

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these days, the firm was only able to observe Plaintiff for a

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total of two and a half hours, most of which Plaintiff spent at

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the grocery store and the dentist’s office.

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49.

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Plaintiff traveling to and from these appointments.

Id.

Id. at 37-69.

The firm

However, because Plaintiff rarely left her home on

Id. at 37-69, 1948-

The firm recorded thirty minutes of video footage of
Id.

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On July 22, 2010, a Hartford investigator interviewed

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Plaintiff at her home and showed her the surveillance footage.

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Id. at 72-87.

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accurately depicted her physical capabilities and limitations.

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Id. at 82.

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limitations -- such as her inability to sustain focus and “brain

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fog” -- which might not be easily documented on video.

Plaintiff told the investigator that the footage

However, she also described various non-physical

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7

Id. at 78.

1

In September 2010, Hartford nurse Marylou Watson reviewed

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Plaintiff’s file, including Plaintiff’s medical records and the

3

surveillance footage.

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not appear to be clinical evidence to support the self reports of

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fatigue and lack of functionality.”

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the surveillance footage to Drs. Thai, Whalen, and Thornburn in

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November 2010 and asked them to evaluate Plaintiff’s physical

8

limitations after viewing the footage.

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declined to respond.

Id. at 190.

Id. at 1408.

She concluded that “there does

Id.

She then sent copies of

Id. at 255-60.

Dr. Thai

Dr. Whalen responded by

United States District Court
For the Northern District of California

10

stating that, in his opinion, Plaintiff was not able to return to

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work.

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response; she noted that, while Plaintiff could likely perform

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forty hours of sedentary work per week, she would not be “able to

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function at the same cognitive ability as she had prior to spring,

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2009, when she was gainfully employed.”

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Id. at 581-82.

Dr. Thornburn provided the most detailed

Id. at 1406.

In December 2010, after receiving these responses, Hartford

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hired a neuropsychologist, Dr. Joseph Ricker, to conduct an

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“independent medical review” of Plaintiff’s file.

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Dr. Ricker spoke to Drs. Whalen and Thornburn and reviewed Dr.

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Karzmark’s August 2010 report on Plaintiff’s cognitive abilities.

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Id. at 574-79.

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neuropsychological abilities were below average, “the vast

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majority of [her] performance on the 8/25/2010 neuropsychological

24

evaluation was within normal limits and not suggestive of a

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cognitively or emotionally based impairment.”

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(repeated at 578).

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to Hartford summarizing his conclusions.

Id. at 196-97.

He concluded that, even though some of Plaintiff’s

Id. at 577

In January 2011, Dr. Ricker submitted a report

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8

Id. at 574-79.

1

Two weeks later, on January 18, 2011, Hartford sent Plaintiff

2

a letter notifying her that it was terminating her LTD benefits

3

under the “own occupation” standard.

4

explained that its decision was based on “inconsistencies between

5

your reported limitations and observed activities and the medical

6

documentation provided in our file.”

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concluded by stating that Plaintiff appeared able to perform

8

“sedentary work” and, thus, should be “able to physically and

9

mentally perform [her] duties.”

United States District Court
For the Northern District of California

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IV.

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Id. at 102-09.

Id. at 106.

Hartford

The letter

Id. at 108.

Social Security Administration Award
On January 31, 2011, Plaintiff was notified that the Social

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Security Administration (SSA) had approved her claim for

13

disability benefits, which she had filed more than two years

14

earlier.

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filing her SSA claim in 2010 by referring her to a law firm it

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often uses to help its claimants apply for SSA benefits.

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188, 191.

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Plaintiff’s SSA claim had been approved, it immediately contacted

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her to notify her that Hartford may be entitled to a share of her

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SSA benefits.

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Id. at 1379-83.

Hartford had assisted Plaintiff in

Id. at

In February 2011, when the firm learned that

Id. at 1385.

In a letter dated February 10, 2011, the firm explained,

22

“Even though Hartford is no longer paying you a monthly benefit,

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you may still owe some of [your SSA award] to them under the terms

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of your policy.

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received a check from Hartford, and a retroactive check from SSA.”

26

Id.

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benefits to reimburse Hartford for its past LTD payments to her.

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Id. at 1349.

You may owe them for any months in which you

Subsequent letters instructed Plaintiff to use her SSA

In March 2011, Plaintiff wrote a letter notifying
9

1

Hartford that she planned to reimburse the company and asking

2

whether Hartford’s reimbursement requests constituted an

3

“acknowledgement by the Hartford that I have been and remain

4

disabled under the Policy.”

5

whether Hartford planned to “thoroughly review the records in

6

[her] Social Security file.”

7

indicate whether Hartford ever responded to these inquiries.

8

V.

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Id. at 203-04, 1349.

Id. at 1349.

She also asked

The AR does not

Plaintiff’s Appeal
On July 14, 2011, Plaintiff notified Hartford of her intent

United States District Court
For the Northern District of California

10

to appeal its termination decision.

11

provided Hartford with declarations of support from friends and

12

family, id., and new materials documenting her disability.

13

Id. at 422-437.

She also

For instance, Plaintiff submitted a letter from Dr.

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Chakravarty, dated June 29, 2011, stating that she continued to

15

suffer from fatigue, dry eyes and mouth, joint pain, and diarrhea.

16

Id. at 725-26.

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Plaintiff’s treatment for these ailments was ongoing but, thus

18

far, had yielded only “limited improvement.”

19

also expressed surprise that Hartford never contacted her to

20

discuss Plaintiff’s condition before terminating Plaintiff’s

21

benefits.

22

In the letter, Dr. Chakravarty noted that

Id.

Dr. Chakravarty

Id.

In addition to the letter from Dr. Chakravarty, Plaintiff

23

submitted the results of a two-day Work Tolerance

24

Screening/Functional Capacity Evaluation (WTS/FCE) that she

25

attended in May 2011.

26

Plaintiff’s ability to perform work-related tasks such as reading,

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typing, and problem-solving.

28

Plaintiff’s WTS/FCE performance stated that her “ability to

Id. at 402-21.

Id.

10

The screening tested

The report summarizing

1

perform fast-paced, intellectually demanding work tasks on a full-

2

time basis is compromised by the physical and mental limitations

3

that have evidently developed since her diagnosis with Sjogren’s

4

disease.”

5

these observed limitations were “consistent with those reported by

6

Ms. Stout to me and to her other medical providers.”

7

Id. at 420.

According to Dr. Chakravarty’s letter,

Id. at 726.

Plaintiff also submitted the results of a neuropsychological

8

evaluation conducted by Dr. Ronald Ruff at the University of

9

California, San Francisco, in June 2011.

Id. at 1196-219.

Dr.

United States District Court
For the Northern District of California

10

Ruff interviewed Plaintiff and reviewed her medical records,

11

focusing on Dr. Karzmark’s August 2010 evaluation.

12

His July 2011 report concluded, “Given her physical and

13

psychiatric status, Ms. Stout is unable to return to her former

14

profession or be competitively employed in a comparable vocation.”

15

Id. at 1219.

Id. at 1196.

16

Shortly after receiving notice of the appeal, Hartford

17

retained two of its own experts to review Plaintiff’s file.

18

first was rheumatologist Dr. Brian Peck, who submitted a report in

19

August 2011 concluding that Plaintiff’s self-reported physical

20

symptoms were not supported by the information in her medical

21

file.

22

of Plaintiff’s medical records and a telephone conversation with

23

Plaintiff’s former rheumatologist, Dr. Thornburn.

24

did not speak to Dr. Chakravarty.

Id. at 309-17.

The

Dr. Peck’s analysis was based on a review

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Id. at 310.

He

In his report, Dr. Peck noted

1

that Plaintiff may need to be limited to “light work”3 if she

2

returned to her job but otherwise still had the “ability to

3

perform work activities on a full-time, sustained basis.”

4

317.

5

Id. at

Hartford’s second expert, neuropsychologist Dr. Milton Jay,

6

also submitted a report to Hartford in August 2011.

7

was based on a review of Plaintiff’s medical records and a

8

telephone conversation with Dr. Whalen.

9

Jay’s report, he states that he “did not see adequate support that

His report

Id. at 319-22.

In Dr.

United States District Court
For the Northern District of California

10

depression or cognitive disorder was sufficiently severe, as of

11

January 2011 and forward in time, that this woman [i.e.,

12

Plaintiff] could not consistently perform work activities for

13

eight hours per day, 40 hours per week on a sustained basis.”

14

at 326.

15

to perform activities such as designing systems, collecting and

16

analyzing data, perform in a highly technical capacity, meet

17

deadlines, be innovative, and work at a high level in the

18

workplace.”

19

Dr. Karzmark’s August 2010 examination, noting that “the findings

20

in attention/concentration, memory, and processing speed appeared

21

to be unexpectedly low for this woman” given her education and

22

employment history but, nevertheless, should not prevent her from

Id.

He also expressed his belief that she had the “capacity

Id. at 326-27.

Dr. Jay placed special emphasis on

23
24
25
26
27
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3

Dr. Peck’s report relies on the definition of “light work” set
forth in the Department of Labor’s (DOL) Dictionary of Occupational
Titles. Because the parties failed to provide this definition, the
Court takes judicial notice of DOL’s publicly available “light work”
definition: “Exerting up to 20 pounds of force occasionally, and/or up
to 10 pounds of force frequently, and/or a negligible amount of force
constantly (Constantly: activity or condition exists 2/3 or more of the
time) to move objects.” DOL, Dictionary of Occupational Titles, App’x
C, at http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM.

12

1

returning to work.

2

Whalen’s opinion that Plaintiff’s depression was relatively mild,

3

noting that “[s]uch depression would not be expected to provide a

4

significant threat to this woman’s functionality.”

5

Id. at 324-25.

Dr. Jay also highlighted Dr.

Id. at 323.

After reviewing all of the material produced during the

6

appeal, Hartford upheld its prior decision to terminate

7

Plaintiff’s benefits.

8

Plaintiff’s appeal on September 12, 2011.

9

Plaintiff filed this lawsuit three months later.

It issued a final letter denying

United States District Court
For the Northern District of California

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11
12

Id. at 215-25.

CONCLUSIONS OF LAW
I.

Legal Standard
To decide cross-motions for judgment under Federal Rule of

13

Civil Procedure 52, the court conducts what is essentially a bench

14

trial on the record, evaluating the persuasiveness of conflicting

15

evidence and deciding which is more likely true.

16

Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999).

17

Kearney v.

The standard of review of a plan administrator’s denial of

18

ERISA benefits depends upon the terms of the benefit plan.

19

contrary language in the plan, the denial is reviewed under a de

20

novo standard.

21

101, 115 (1989).

22

the plan administrator or fiduciary discretionary authority to

23

determine eligibility for benefits or to construe the plan’s

24

terms,” the administrator’s decision is reviewed for abuse of

25

discretion.

26

confers discretion upon Hartford and, therefore, requires the

27

Court to apply the abuse of discretion standard.

Absent

Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
However, if “the benefit plan expressly gives

Id. at 102.

The parties here agree that the Policy

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13

1

Under this standard, the administrator’s decision will

2

typically be upheld if it is reasonable and supported by

3

substantial evidence in the administrative record as a whole.

4

McKenzie v. General Tel. Co. of Cal., 41 F.3d 1310, 1316-17 (9th

5

Cir. 1994).

6

funder, then the court must take account of this conflict of

7

interest and “review the administrator’s stated bases for its

8

decision with enhanced skepticism.”

9

Acc. Ins. Co., 588 F.3d 623, 631 (9th Cir. 2009).

However, if the plan administrator is also the plan

Montour v. Hartford Life &
In those

United States District Court
For the Northern District of California

10

circumstances, abuse of discretion review must be “tempered by

11

skepticism commensurate with the plan administrator’s conflict of

12

interest.”

13

959 (9th Cir. 2006) (en banc).

14

Abatie,

15
16
17
18
19
20
21

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955,
As the Ninth Circuit explained in

The level of skepticism with which a court views a
conflicted administrator’s decision may be low if a
structural conflict of interest is unaccompanied, for
example, by any evidence of malice, of self-dealing, or
of a parsimonious claims-granting history. A court may
weigh a conflict more heavily if, for example, the
administrator provides inconsistent reasons for denial,
fails adequately to investigate a claim or ask the
plaintiff for necessary evidence, fails to credit a
claimant’s reliable evidence, or has repeatedly denied
benefits to deserving participants by interpreting plan
terms incorrectly or by making decisions against the
weight of evidence in the record.

22

Id. at 968-69.

23

Metropolitan Life Insurance Co. v. Glenn, holding that a plan

24

administrator’s conflict of interest should be “weighed as a

25

factor in determining whether there is an abuse of discretion.”

26

554 U.S. 105, 115 (2008) (quotation marks omitted); see also Burke

27

v. Pitney Bowes Inc. Long–Term Disability Plan, 544 F.3d 1016,

The Supreme Court relied on similar logic in

28
14

1

1024 (9th Cir. 2008) (noting that the Glenn framework is “similar

2

to the one provided in Abatie”).

3

In this case, because Hartford is both the Policy

4

administrator and the funding source for benefits paid under the

5

Policy, it operates under a structural conflict of interest.

6

Abatie, 458 F.3d at 966 (noting that “such an administrator has an

7

incentive to pay as little in benefits as possible to plan

8

participants because the less money the insurer pays out, the more

9

money it retains in its own coffers”).

This conflict merits

10
United States District Court
For the Northern District of California

See

special emphasis here because it appears to have tainted

11

Hartford’s decision-making process.

12

In Montour, the Ninth Circuit identified several possible

13

“signs of bias” that would justify giving significant weight to a

14

plan administrator’s conflict of interest.

15

These include the absence of administrative “procedures to help

16

ensure a neutral review process”; the administrator’s “decision to

17

conduct a ‘pure paper’ review” of the claimant’s medical records

18

rather than an in-person medical evaluation; and the

19

administrator’s “failure to grapple with the SSA’s contrary

20

disability determination.”

21

process suffered from all of these deficiencies.

22

Id. at 633-35.

588 F.3d at 632-33.

Hartford’s review

First, just as it did in Montour, Hartford failed “to present

23

any extrinsic evidence of any effort on its part to ‘assure

24

accurate claims assessment.’”

25

identified any steps that it took to “wall[] off claims

26

administrators from those interested in firm finances” or to

27

impose “management checks that penalize inaccurate

28

decisionmaking.”

Id. at 634.

Glenn, 554 U.S. at 117.
15

The company has not

“While Hartford was not

1

required to present evidence demonstrating its efforts to achieve

2

claims administration neutrality, the Supreme Court’s decision in

3

[Glenn] placed it on notice as to the potential significance of

4

such evidence in defense of a suit by a claimant challenging an

5

adverse benefits determination.”

6

Glenn, 554 U.S. at 116-17).

7

Montour, 588 F.3d at 634 (citing

Second, Hartford’s termination decision here was based on a

8

“pure paper” review.

9

experts examined Plaintiff in person.

Id. at 634.

None of Hartford’s medical
In fact, they failed even

United States District Court
For the Northern District of California

10

to speak with her treating physician, Dr. Chakravarty, about her

11

condition.4

12

thoroughness and accuracy of the benefits determination.’”

13

(alteration in original; citing Bennett v. Kemper Nat’l Servs.,

14

Inc., 514 F.3d 547, 554 (6th Cir. 2008)).

15

has noted, a plan administrator’s reliance on independent experts

16

raises “serious concerns” about its impartiality when those

17

experts lack access to “all of the relevant evidence.”

18

U.S. 106-07.

19

This failure “‘raise[s] questions about the
Id.

As the Supreme Court

Glenn, 554

Third, Hartford failed to address adequately the SSA’s

20

determination that Plaintiff suffered from a disability.

21

Hartford noted in its September 2011 denial that the SSA uses a

22

different disability definition than Hartford, it did not address

23

any of the SSA’s specific findings.

AR 224.

Although

The Montour court

24
4

25
26
27
28

Hartford notes that its rheumatology expert, Dr. Peck, attempted
to contact Dr. Chakravarty “but was unable to reach her despite numerous
attempts.” Docket No. 57, Cross-Mot. J., at 9. However, the fact that
Dr. Peck attempted to reach Dr. Chakravarty does not absolve Hartford of
its obligation to conduct a thorough review of Plaintiff’s claim. If
anything, Dr. Peck’s admission that he failed to speak to Dr.
Chakravarty, AR 309, should have put Hartford on notice that his
analysis was potentially incomplete.

16

1

held that this is inadequate, noting, “Ordinarily, a proper

2

acknowledgment of a contrary SSA disability determination would

3

entail comparing and contrasting not just the definitions employed

4

but also the medical evidence upon which the decisionmakers

5

relied.”

6

not bound by the SSA’s determination, complete disregard for a

7

contrary conclusion without so much as an explanation raises

8

questions about whether an adverse benefits determination was ‘the

9

product of a principled and deliberative reasoning process.’”

588 F.3d at 636 (“While ERISA plan administrators are

United States District Court
For the Northern District of California

10

(citations omitted)).

11

decision is particularly egregious here, given that Plaintiff

12

expressly asked Hartford to do so and even offered to make her SSA

13

file available to Hartford.

14

Hartford’s failure to review the SSA

AR 1349.

What’s more, Hartford actively encouraged Plaintiff “to argue

15

to the Social Security Administration that she could do no work,

16

received the bulk of the benefits of her success in doing so

17

(being entitled to receive an offset from her retroactive Social

18

Security award), and then ignored the agency’s finding in

19

concluding that she could do sedentary work.”

20

118.

21

of events was not only an important factor in its own right

22

(because it suggested procedural unreasonableness), but also would

23

have justified the court in giving more weight to the conflict”

24

because the insurer’s “seemingly inconsistent positions were both

25

financially advantageous.”

26

Montour, 588 F.3d at 635 (“Ultimately, Hartford’s failure to

27

explain why it reached a different conclusion than the SSA is yet

28

another factor to consider in reviewing the administrator's

Glenn, 554 U.S. at

In Glenn, the Supreme Court held that this identical “course

Id. (emphasis added); see also

17

1

decision for abuse of discretion, particularly where, as here, a

2

plan administrator operating with a conflict of interest requires

3

a claimant to apply and then benefits financially from the SSA's

4

disability finding.”).

5

The only significant difference between Hartford’s
administrative review process here and the one it used in Montour

7

is that Hartford relied less heavily on surveillance footage in

8

this case.

9

footage] out of proportion,” Hartford’s letter denying Plaintiff’s

10
United States District Court
For the Northern District of California

6

benefits barely mentions the footage and does not appear to place

11

significant weight on it.

12

of bias” in Hartford’s decision-making process require that this

13

Court “accord significant weight to the conflict.”

14

634.

15

II.

16

While Plaintiff contends that Hartford “blew [the

Nevertheless, the various other “signs

588 F.3d at

Plaintiff’s Disability Claim
Plaintiff seeks review of Hartford’s termination decision

17

under § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a).

18

provision allows a plan participant “to recover benefits due to

19

him under the terms of his plan, to enforce his rights under the

20

terms of the plan, or to clarify his rights to future benefits

21

under the terms of the plan.”

This

Id.

22

A.

23

Hartford’s decision to terminate Plaintiff’s benefits was

“Own Occupation” Standard

24

made under the “own occupation” standard.

25

principally on the opinions of three experts: Dr. Ricker, who

26

submitted a report to Hartford in January 2011 just before it

27

issued its initial termination decision, and Drs. Peck and Jay,

28

who submitted reports in August 2011 shortly before Hartford
18

The decision was based

1

denied Plaintiff’s appeal.

2

to examine Plaintiff and discounted the opinions of Plaintiff’s

3

treating physicians without explanation, Hartford’s reliance on

4

their opinions constitutes an abuse of discretion.

5

Caplan v. CNA Financial Corp., 544 F. Supp. 2d 984, 992 (N.D. Cal.

6

2008) (finding abuse of discretion where plan administrator

7

“discounted a wealth of evidence that Plaintiff was not able to

8

perform the duties of his occupation”).

Because each of these experts failed

See, e.g.,

Dr. Ricker, for instance, focused solely on Plaintiff’s

10
United States District Court
For the Northern District of California

9

cognitive impairment and never evaluated the evidence of her

11

physical symptoms.

12

he was “not in a position to address any physical limitations or

13

restrictions.”

14

were based almost entirely on the results of Plaintiff’s August

15

2010 cognitive evaluation, Dr. Ricker never explained why his

16

interpretation of those results differed so widely from those of

17

Dr. Karzmark, who actually administered the evaluation.

18

Ricker’s conclusion that the “vast majority” of Plaintiff’s

19

results were “within normal limits,” id., seems squarely at odds

20

with Dr. Karzmark’s conclusion that Plaintiff’s “overall

21

performance on the battery was at the 30th percentile” among

22

people of her age and education level.

23

Plaintiff’s “Performance IQ is low for [her] sociodemographic

24

expectation”).

25

occasional statistically below average performances on large

26

batteries of neuropsychological tests is not at all uncommon even

27

among neuropshycologically intact individuals,” id. at 577

Indeed, he expressly stated in his report that

AR 577.

Furthermore, even though his conclusions

Dr.

Id. at 1419 (finding that

Although Dr. Ricker states that the “presence of

28
19

1

(emphasis added), he does not explain why Plaintiff performed

2

below average in several different testing areas.

3

Hartford’s other neuropsychologist, Dr. Jay, was more candid

4

in his analysis, noting that Plaintiff’s test scores on the August

5

2010 cognitive evaluation were “unexpectedly low” for someone of

6

her education level and employment history.

7

while Dr. Jay acknowledged that Plaintiff’s condition “would

8

likely result in some mild inefficiency for cognitively demanding

9

work,” id. at 324, he still concluded that she was not “prevented

Id. at 324-25.

But,

United States District Court
For the Northern District of California

10

from working altogether,” id. at 326.

11

this conclusion without reviewing any of the “raw data” from the

12

August 2010 cognitive evaluation.

13

significant because Dr. Jay’s report challenged the conclusions of

14

two different neuropsychologists, Drs. Karzmark and Ruff, who

15

actually met with Plaintiff and analyzed the raw data.

16

failure to provide Dr. Jay with this data -- and subsequent

17

decision to rely on his report -- indicate that it abused its

18

discretion.

19

ensuring that “independent vocational and medical experts” have

20

access to “all of the relevant evidence”).

21

Id.

Critically, Dr. Jay reached

This oversight is

Hartford’s

See Glenn, 554 U.S. at 118 (noting the importance of

Hartford’s third expert, Dr. Peck, also relied on incomplete

22

information in his report on Plaintiff’s physical limitations.

23

noted above, Dr. Peck never personally examined Plaintiff nor

24

spoke to her treating rheumatologist, Dr. Chakravarty.

25

v. Standard Ins. Co., 759 F. Supp. 2d 1172, 1188 (N.D. Cal. 2011)

26

(finding abuse of discretion where “none of [the administrator]’s

27

physician reviewers ever contacted or spoke with [the claimant]’s

28

treating physicians to ascertain the current state of his
20

As

See Oster

1

condition”).

2

June 2011 letter, consisted mostly of short summaries of tests and

3

analyses conducted by other doctors.

4

analysis of Plaintiff’s health was brief -- eleven sentences

5

long -- and repeatedly stated that any disability “due to

6

depression and cognitive defects is beyond [his] area of

7

expertise.”

8

addressed the fact that Plaintiff’s treating physician -- who

9

produced many of the records on which Dr. Peck relied -- reached a

His report, which did not discuss Dr. Chakravarty’s

Id. at 316-17.

AR 309-15.

Dr. Peck’s own

Most importantly, the report never

United States District Court
For the Northern District of California

10

different conclusion than he did about Plaintiff’s ability to

11

return to work.

12

Nord, 538 U.S. 822, 834 (2003) (holding that, although plan

13

administrators need not “accord special weight to the opinions of

14

a claimant’s physician,” they may not “arbitrarily refuse to

15

credit” those opinions either).

16

explain why he reached a different conclusion from Plaintiff’s

17

treating physicians.

18

See generally Black & Decker Disability Plan v.

Dr. Peck made no attempt to

In sum, Hartford’s expert reports suffer from several common

19

shortcomings.

20

cognitive symptoms in isolation, without considering their

21

cumulative effect on Plaintiff’s ability to perform her job.

22

Furthermore, each report was based on a review of Plaintiff’s

23

medical records rather than an in-person medical examination.

24

Finally, none of the reports made any serious effort to discredit

25

Plaintiff’s WTS/FCE results or distinguish the contrary findings

26

of Plaintiff’s treating physicians and the SSA.

27
28

Each report analyzed Plaintiff’s physical and

Hartford’s reliance on these flawed reports therefore shows
that it abused its discretion in terminating Plaintiff’s claim for
21

1

LTD benefits under the “own occupation” standard.

2

Supp. 2d at 991-93 (holding that a plan administrator abused its

3

discretion by relying on an expert report that showed a “total

4

disregard for the conclusions of Plaintiff’s treating physicians”

5

and failed to credit the “objective evidence of [the claimant]’s

6

condition, including the results of the WTS/FCE”).

7

Circuit has likewise held that similar conduct by plan

8

administrators constitutes an abuse of discretion.

9

588 F.3d at 637; Sterio v. HM Life, 369 Fed. App’x 801, 803-05

Caplan 544 F.

The Ninth

See Montour,

United States District Court
For the Northern District of California

10

(9th Cir. 2010) (finding abuse of discretion where plan

11

administrator had a conflict of interest and “failed to credit []

12

reliable medical evidence,” “failed to distinguish or even

13

acknowledge the SSA’s contrary disability determination,” and

14

“failed to conduct an in-person medical evaluation”); Chellino v.

15

Kaiser Foundation Health Plan, Inc., 352 Fed. App’x 164, 167 (9th

16

Cir. 2009) (“Given Aetna’s inherent conflict of interest, reliance

17

on unsupported evidence, and failure to credit evidence not so

18

flawed, Aetna’s decision to terminate Chellino’s benefits was an

19

abuse of discretion.”).

20

B.

21

Plaintiff contends that she is entitled to LTD benefits under

“Any Occupation” Standard

22

the “any occupation” standard.

23

reasons.

24

This argument fails for two

First, the AR does not contain sufficient information to

25

determine whether or not Plaintiff is entitled to benefits under

26

this standard.

27

on the effect that her condition has had on her ability to perform

28

the duties of a senior level computer programmer with supervisory

Plaintiff’s own medical evidence focuses primarily

22

1

responsibilities.

2

ability to perform the various other jobs for which she might be

3

qualified.

4

Her evidence does not specifically address her

Second, even if the AR did contain sufficient information to

5

determine whether Plaintiff was disabled under the “any

6

occupation” standard, the Court would still lack the authority to

7

make that determination.

8

plan administrator abuses its discretion by terminating disability

9

benefits under a specific disability standard, the reviewing court

The Ninth Circuit has held that when a

United States District Court
For the Northern District of California

10

may only reinstate those benefits under the same standard.

11

v. Sierra Pacific Power Co. Bargaining Unit LTD Income Plan, 85

12

F.3d 455, 460 (9th Cir. 1996) (“[T]o the extent the district court

13

ordered payments beyond the initial 24-month disability period, it

14

was error to do so.”); Frost v. Metropolitan Life Ins. Co., 320

15

Fed. App’x 589, 592 (9th Cir. 2009) (“[Plaintiff] is entitled only

16

to the benefits she was wrongly denied under the remainder of the

17

plan’s ‘Own Occupation’ period.”).

18

Plaintiff’s claim under the “own occupation” standard and did not

19

address whether she would qualify for benefits under the higher

20

“any occupation” standard.

21

remanded to Hartford for a determination of whether she qualifies

22

for LTD benefits under the “any occupation” standard.

23

544 F. Supp. 2d at 994 (“Plaintiff’s claim for additional long-

24

term disability benefits is REMANDED to Hartford for further

25

proceedings consistent with this order.”).

26
27
28

Saffle

Here, Hartford terminated

Accordingly, Plaintiff’s claim must be

See Caplan,

CONCLUSION
For the reasons set forth above, Plaintiff’s motion for
judgment (Docket No. 50) is GRANTED with respect to her claim
23

1

under the “own occupation” standard and DENIED with respect to her

2

claim under the “any occupation” standard.

3

motion for judgment (Docket No. 57) is DENIED.

4

evidentiary objections are DENIED as moot because the Court has

5

not relied on the evidence they address.

6

Defendants’ crossDefendants’

The Court finds that Plaintiff is eligible for LTD benefits

7

under the “own occupation” standard applicable to the first

8

twenty-four months of her LTD claim and orders Defendants to pay

9

any of those benefits that remain unpaid, plus prejudgment

United States District Court
For the Northern District of California

10

interest thereon.5

11

benefits and interest due in the first instance.

12

has made this calculation, the parties shall file a stipulated

13

form of judgment.

14

within twenty-one days of this order.

15

amount due arises and cannot be resolved without the Court’s

16

intervention, the parties may move for appropriate relief.

17

Plaintiff seeks an award of attorneys’ fees, she must file a

18

separate motion and must support the request with appropriate

19

documentation, including billing records and a lodestar figure.

20

Hartford should calculate the amount of past
After Hartford

This stipulated form of judgment must be filed
If a dispute concerning the

If

Plaintiff’s claim for additional LTD benefits is REMANDED to

21

Hartford to determine whether Plaintiff is disabled under the

22

Policy’s “any occupation” standard.

23

issued a decision under that standard, there will be no live

Because Hartford has not yet

24
5

25
26
27
28

Prejudgment interest shall be calculated “at a rate equal to the
weekly average 1–year constant maturity Treasury yield, as published by
the Board of Governors of the Federal Reserve System, for the calendar
week preceding. [sic] the date of the judgment.” 28 U.S.C. § 1961(a);
see also Blankenship v. Liberty Life Assurance Co. of Boston, 486 F.3d
620, 628 (9th Cir. 2007) (noting that “‘the interest rate prescribed for
post-judgment interest under 28 U.S.C. § 1961 is appropriate for fixing
the rate of pre-judgment interest’” (citations omitted)).

24

1

dispute remaining between the parties after judgment enters in

2

this matter.

3

enters.

4

decision under the “any occupation” standard, she will need to

5

file a new complaint and may seek to relate it to this case.

6

Accordingly, this case will be closed once judgment

If Plaintiff subsequently seeks to challenge Hartford’s

IT IS SO ORDERED.

7
8
9

Dated: 8/28/2013

CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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