Do v. Metropolitan Life Insurance Company

Filing 38

ORDER by Judge Claudia Wilken granting 33 Plaintiff's Motion for Judgment ; denying 34 Defendant's Motion for Judgment. (dtmS, COURT STAFF) (Filed on 5/1/2018) Modified on 5/1/2018 (dtmS, COURT STAFF).

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

DAVID DO,

5

Plaintiff,

6
7
8

Case No. 16-cv-05097-CW

v.
METROPOLITAN LIFE INSURANCE
COMPANY,
Defendant.

ORDER GRANTING PLAINTIFF'S
MOTION FOR JUDGMENT AND
DENYING DEFENDANT'S MOTION
FOR JUDGMENT
(Dkt. Nos. 33, 34)

United States District Court
Northern District of California

9
10
11

In this case, Plaintiff David Do asserts that he is entitled

12

to long-term disability insurance benefits under the IVZ, Inc.

13

Disability Plan pursuant to the Employee Retirement Income

14

Security Act of 1974, 29 U.S.C. § 1332(a)(1)(B) (ERISA) from

15

Defendant Metropolitan Life Insurance Company, the claim

16

administrator for the Plan.

17

pursuant to Federal Rule of Civil Procedure 52; Defendant opposes

18

Plaintiff’s motion and cross-moves for judgment.

19

2017, the parties appeared for oral argument.

20

the papers and the arguments of counsel, the Court GRANTS

21

Plaintiff’s motion and DENIES Defendant’s motion.

22
23
24

Plaintiff now moves for judgment

On November 28,

Having considered

BACKGROUND
I.

Plaintiff’s background
Plaintiff is a thirty-seven year old man who was employed as

25

an Analyst—Desktop Services for IVZ, Inc.

26

included resolving promptly and effectively “all support calls

27

relating to desktop software/hardware, installation, and

28

maintenance.”

AR 2863.

Plaintiff’s duties

Plaintiff’s position required him to

1

lift and carry up to seventy-five pounds on an occasional basis

2

throughout the workday, use his hands repetitively in all planes

3

of motion (grasping, fine manipulation, pushing/pulling), and

4

reach occasionally above and below shoulder level.

5

II.

AR 2862.

The Plan
While Plaintiff was employed at IVZ, Inc., he was insured

7

for long-term disability (LTD) benefits through MetLife-issued

8

Group Insurance Policy No. 116385-1-G (the Plan).

9
United States District Court
Northern District of California

6

served as the Plan Administrator and Sponsor of the Plan.

10
11

IVZ, Inc.
AR 64.

MetLife served as the Plan’s claim administrator.
Under the Plan, Plaintiff is eligible for benefits if he can

12

establish that he is disabled.

13

“disability” as follows:

14
15

The Plan defines “disabled” and

Disabled or Disability means that, due to Sickness or
as a direct result of accidental injury:


16



17
18
19

You are receiving Appropriate Care and Treatment
and complying with the requirements of such
treatment; and
You are unable to earn more than 80% of your
Predisability Earnings for any employer in Your
Local Economy at any gainful occupation for which
You are reasonably qualified taking into account
Your training, education and experience.

20

AR 28.

21

The Plan also describes the duration of benefits:

22
23

Your Disability benefit payments will end on the
earliest of:

24




25



26



27

the end of the Maximum Benefit Period;
the date benefits end as specified in the section
entitled LIMITED DISABILITY BENEFITS;
the date You are no longer Disabled;
[. . .]
the date You fail to provide required Proof of
continuing Disability.

AR 47.
28
2

1

The benefits period is limited to twenty-four months if
the disability is due to “Neuromuscular, Musculoskeletal or

3

Soft Tissue Disorder” (NMS) “including, but not limited to,

4

any disease or disorder of the spine or extremities and

5

their surrounding soft tissue; including sprains and strains

6

of joints and adjacent muscles.”

7

this limitation is where there is “objective evidence

8

of . . . Radiculopathies,” which is defined as a “disease of

9
United States District Court
Northern District of California

2

the peripheral nerve roots supported by objective clinical

10

findings of nerve pathology.”

11

AR 50-51.

An exception to

III. Plaintiff’s disability

12

AR 50-51.

In February 2013, Plaintiff injured his neck, back and

13

shoulders while performing his job duties, such as moving

14

computers, monitors, servers, and other equipment.

15

2883.

16

compensation and short term disability benefits.

17

2883, 2549.

18

AR 2541,

He stopped work and applied for and received workers’
AR 230,

Plaintiff received physical therapy treatment from Dr.

19

Donald Hammon.

20

Attending Physician Statement to Defendant on Plaintiff’s

21

behalf, stating that Plaintiff suffered from disc injury and

22

lumbar strain and sprain.

23

noted that Plaintiff reported pain of an intermittent and

24

radicular type.

25

perform some job duties, would be restricted in prolonged

26

sitting, standing, bending, and lifting, but could improve

27

sitting and standing within twelve weeks.

28

In March 2013, Dr. Hammon submitted an

AR 2380.

AR 2380.

Dr. Hammon further

He advised that Plaintiff could

AR 2380-81.

On April 3, 2013 and May 24, 2013, Plaintiff received
3

1

MRIs, which showed degenerative disc disease and a number of

2

other conditions.

AR 2110-12, 2388-89.

3

On April 30, 2013, Dr. Edward Sun, an orthopedic

4

surgeon, examined Plaintiff and reviewed the April 3, 2013

5

MRI.

6

“exhibit significant lumbar radiculopathy or any

7

neurological deficit on examination.”

8

IV.

United States District Court
Northern District of California

9

AR 2546.

Dr. Sun concluded that Plaintiff did not

AR 2546.

Defendant’s grant of STD and LTD benefits
On September 12, 2013, Defendant approved Plaintiff’s

10

claim for short-term disability (STD) benefits from March

11

11, 2013 through September 2, 2013.

12

that Plaintiff was not able to perform essential functions

13

of his job due to “continued cervical, thoracic and lumbar

14

pain (level 8/10) and stiffness, markedly limited ROM,

15

positive MRI, disc desiccation and annualr [sic] tear from

16

L3-S1, [. . .] insufficient soft tissue mobility and

17

strength, abnormal posture with left elevated shoulder and

18

inability to sit for longer than 30 min. . .”

19

The claim notes stated

AR 108, 2553.

Around the time Plaintiff’s STD benefits were paid in

20

full, Plaintiff sought LTD benefits under the Plan.

21

114-17, 1718-28.

22

experienced “piercing pain in lower back, extremely tense

23

and throbbing in upper back/neck; difficult bending and

24

lifting, can’t sit/stand for long.”

25

2013, Dr. Hammon submitted his Attending Physician Statement

26

in support of Plaintiff’s claim, which diagnosed Plaintiff

27

with “lumbar disk [sic] disease and radiculopathy,” and

28

noted that Plaintiff reported “moderate to severe lower back

AR 112,

Plaintiff’s claim form noted that he

4

AR 1722.

On August 30,

1

pain and radicular type symptoms.”

2

further prescribed lifting a maximum of ten pounds

3

occasionally; refraining from lifting a phone for prolonged

4

periods; refraining from stooping or twisting; and only

5

sitting, standing and walking for limited periods

6

intermittently.

7

AR 1703.

Dr. Hammon

AR 1703-04.

Plaintiff also submitted Division of Workers’
Compensation physician’s progress reports from Physician’s

9
United States District Court
Northern District of California

8

Assistant (PA) Kiran Aulakh, which indicated reduced range

10

of motion and tenderness in the neck and lumbar region.

11

1875-82.

12

noted that Plaintiff stated that he experienced numbness in

13

his right leg, which worsened with prolonged sitting and

14

walking, along with numbness and tingling in his right arm.

15

AR 2563.

16

other things.

17

AR

In a note dated September 16, 2013, PA Aulakh

PA Aulakh diagnosed cervical radiculopathy, among
AR 2563.

Defendant sent Plaintiff to undergo an “Independent

18

Medical Examination” (IME) on November 18, 2013 with Dr. L.

19

Neena Madireddi through its third-party vendor, Medical

20

Consultants Network.

21

a clinical examination and made a number of findings.

22

1783.

23

cervical and lumbar strain; lumbar spondylosis; disc

24

desiccation, annular tear L3 to S1; and possible cervical

25

spondylosis.

26

concluded that Plaintiff could work full-time in a light-

27

capacity job according to the Dictionary of Occupational

28

Titles, noting: “He could lift and carry at least 30 pounds

AR 1779-1784.

Dr. Madireddi conducted
AR

Dr. Madireddi diagnosed Plaintiff with chronic

AR 1783.

Nevertheless, Dr. Madireddi

5

1

occasionally, 15 pounds frequently, and can occasionally

2

stoop, crouch, crawl, and reach overhead.

3

restrictions on pushing, pulling, handling, finger, or

4

feeling.”

5

There are no

AR 1784.

Defendant requested a vocational review to determine if
there were gainful occupations meeting Dr. Madireddi’s

7

findings on job capacity.

8

vocational reviewer acknowledged that, in light of Dr.

9
United States District Court
Northern District of California

6

Madireddi’s restrictions, there were no gainful alternative

On December 3, 2013, Defendant’s

10

occupations that Plaintiff could perform at that time.

11

230.

12

LTD benefits for Plaintiff effective September 7, 2013.

13

1794-97.

14

Plaintiff that, under the plan, for a disability due to a

15

“Neuromuscular, Musculoskeletal or Soft Tissue Disorder,” or

16

a “disease or disorder of the spine or extremities and their

17

surrounding soft tissue, including sprains and strains of

18

joints and adjacent muscles,” his maximum benefit duration

19

would be twenty-four months, unless he could show objective

20

evidence of a number of exceptions, such as

21

“Radiculopathies.”

22

disability fell into the NMS limitation, the maximum benefit

23

period would end on September 6, 2015.

24

letter advised Plaintiff that “benefits may continue after

25

September 6, 2015 if [he] continue[d] to satisfy the

26

definition of Disability due to other non-limited medical

27

condition(s) and other plan requirements.”

28

the letter did not explain what evidence would be required

AR

Accordingly, on December 6, 2013, Defendant approved
AR

The letter approving LTD benefits informed

AR 1794-95.

Because Plaintiff’s

6

AR 1794-95.

AR 1795.

The

But

1

to make this showing.

2

A.

Ongoing review of Plaintiff’s LTD benefits claim

3

Plaintiff submitted additional information to show

4

continued disability and that he was not subject to the

5

twenty-four month limitation applicable to NMS.
Plaintiff provided nerve conduction velocity (NCV) and

7

electromyography (EMG) studies of his extremities conducted

8

by Dr. Scott Standage on November 23, 2013, which showed

9
United States District Court
Northern District of California

6

results consistent with right-sided lumbar radiculopathy.

10

AR 1884, 1891.

11

Plaintiff also provided PA Aulakh’s office notes dated

12

February 26, 2014, February 12, 2014, January 10, 2014, and

13

December 10, 2014, in which he noted Plaintiff experienced

14

decreased range of motion of the cervical spine and lumbar

15

spine.

16

cervical radiculopathy and lumbar radiculitis.

AR 1875-81.

PA Aulakh diagnosed Plaintiff with
AR 1875-81.

17

Plaintiff also provided a February 6, 2014 orthopedic

18

permanent disability evaluation report that was written by

19

Dr. Joel Renbaum as part of the workers’ compensation

20

proceedings.

21

examination on January 21, 2014.

22

stated that Plaintiff had multilevel degenerative disc

23

disease of the lumbar spine “with radicular pain” and had

24

multilevel degenerative disc disease of the cervical spine

25

with canal stenosis.

26

was incapable of performing his customary work activities

27

based on the bending, reaching, crawling, and lifting

28

requirements of his job, and stated that he was permanent

AR 2162-69.

Dr. Renbaum conducted a physical

AR 2887.

AR 2165-66.

Dr. Renbaum

He concluded that Plaintiff

7

1

and stationary.

2

AR 2888.

On February 26, 2014, Dr. Teresita Degamo, an internist
who was Plaintiff’s treating provider, faxed Defendant

4

records to support Plaintiff’s continued disability,

5

including: an attending physician form, which indicated

6

Plaintiff had neck and back pain with radicular symptoms;

7

Dr. Standage’s November 23, 2013 report following an EMG;

8

and office notes dated February 26, 2014, February 12, 2014,

9
United States District Court
Northern District of California

3

January 10, 2014, and December 10, 2014, with clinical

10

findings and diagnoses of cervical radiculopathy and lumbar

11

radiculitis.

12

AR 1867-1881.

Defendant submitted the foregoing information to Dr.

13

Madireddi for an Addendum.

14

analysis, Dr. Madireddi stood by her original finding that

15

Plaintiff could perform full-time, light capacity work.

16

1898-1901.

17

Without providing any additional

AR

In July 2014, Dr. Degamo provided a workers’

18

compensation physician’s progress report of a physical exam

19

which indicated low-back pain without radiation to the lower

20

extremities.

21

AR 2247.

On January 16, 2015, Defendant reminded Plaintiff that

22

he was subject to the Plan’s NMS limitation and that

23

Defendant would continue to review his claim to determine if

24

he was subject to an exception to the limitation.

25

18.

26

AR 2017-

Plaintiff subsequently provided a February 13, 2015

27

Transfer of Care Report from Dr. Brian Mitchell.

28

79.

AR 2075-

Dr. Mitchell conducted a physical exam and reviewed the
8

1

May 24, 2013 MRI; April 3, 2013 MRI; and November 23, 2013

2

EMG of bilateral lower extremities.

3

diagnosed Plaintiff with several conditions including

4

cervical radiculopathy and lumbar radiculitis.

5

2080, 2083.

6

hours sitting, standing, and walking in an eight hour day

7

and was limited to lifting up to twenty pounds a day.

8

2073.

United States District Court
Northern District of California

9

AR 2077-78.

He

AR 2078,

He advised that Plaintiff was limited to four

AR

On March 25, 2015, Defendant commissioned one of its Senior

10

Medical Directors, Dr. Joseph Monkofsky, Jr., to provide a file

11

review of the available medical record.

12

the 2013 MRI was consistent with a right-side L5 radiculopathy.

13

AR 2138.

14

evidence of significant and impairing radiculopathy here despite

15

the previous diagnostics largely due to the continuing nature of

16

the complaints and lack of exam evidence to support.”

17

He also noted, “It remains unclear why updated diagnostic imaging

18

and further diagnostics have not been done when the claimant has

19

been out of work for so long.”

20

limitations still appear to be indicated despite the unimpressive

21

clinical findings and old imaging/diagnostic studies being relied

22

on.”

AR 2138.

He noted that

But he also stated, “There was no convincing clinical

AR 2139.

AR 2138.

He concluded, “Some

AR 2139.

23

On April 24, 2015, Defendant’s vocational consultant

24

provided an updated vocational report that concluded again that

25

there were no alternative occupations meeting the gainful wage

26

requirement at that time.

27

B.

AR 702-07.

Defendant’s termination of benefits

28
9

1

Defendant reviewed all of this information and informed
Plaintiff by letter dated August 25, 2015 that it had determined

3

he would no longer be considered disabled under the Plan after

4

September 6, 2015 because there was no showing of radiculopathy

5

as defined by the Plan.

6

Monkofsky’s paper review, stating that “[u]pdated diagnostic

7

imaging and further diagnostics have not been done” and noting

8

that there was a “lack of exam evidence.”

9
United States District Court
Northern District of California

2

C.

10

AR 2337-39.

The letter quoted from Dr.

AR 2238.

Plaintiff’s appeal
On appeal of his claim, Plaintiff, through counsel,

11

provided updated medical evidence.

12

February 10, 2016 Electronic Consultation by Dr. Standage,

13

who conducted nerve conduction studies and EMGs and noted

14

results consistent with bilateral lumbar radiculopathy.

15

899, 2625-2627.

16

2016 MRI showing canal and nerve passageway narrowing.

17

902.

18

report from Dr. April Mancuso Reynolds, dated March 14,

19

2016, following a comprehensive clinical examination.

20

2632-2639.

21

test bilaterally, and a decrease in sensation in the left

22

upper and right lower extremities, among other things.

23

2632-2639.

24

radiculitis and bilateral lumbar radiculopathy.

25

AR 2620.

He provided a

AR

Plaintiff additionally provided a March 1,
AR

Plaintiff also provided a Transfer of Care examination

AR

Dr. Reynolds reported a positive straight leg

AR

Dr. Reynolds diagnosed Plaintiff with cervical
AR 2638.

During the appeal, Defendant sought an independent

26

physician consultation from Dr. Malcolm McPhee, board-

27

certified in Physical Medicine and Rehabilitation.

28

McPhee reviewed the medical records and issued a report,
10

Dr.

1

dated June 20, 2016, summarizing the medical evidence,

2

including Dr. Reynolds’s report.

3

“Radiculopathy was considered but clinical exam revealed no

4

focal findings in a nerve root pattern.”

5

further noted that a “repeat electrodiagnostic study was not

6

done.”

7

AR 916-18.

He opined:

AR 920.

He

AR 920.

His report was sent to Plaintiff’s counsel on June 22,
2016.

9
United States District Court
Northern District of California

8

responded that the reviewer had failed to consider all of

In a letter dated June 23, 2016, Plaintiff’s counsel

10

the evidence included with the appeal because Plaintiff had

11

provided updated electrodiagnostic tests and Dr. Reynolds’s

12

examination report from 2016.

13

AR 895-96.

On July 26, 2016, Dr. McPhee provided an addendum to

14

his report, acknowledging review of the additional evidence

15

and addressing it in detail.

16

the February 10, 2016 nerve conduction studies and EMGs

17

conducted by Dr. Standage, Dr. McPhee noted that “the

18

lumbosacral electrodiagnostic studies showed some

19

electrophysiological changes that were not inconsistent with

20

radiculopathy,” but dismissed it because the study “in and

21

of itself is not diagnostic of radiculopathy, with clinical

22

correlation still required.”

23

the same with respect to the January 2016 MRI, stating that

24

the results showed Plaintiff had conditions that “could

25

contribute to radicular symptoms on the left, but clinical

26

correlation is required.”

27

“Clinical correlation should consist of reported symptoms in

28

a nerve root distribution, with provocation and nature of

AR 870-75.

AR 887.

AR 887.

11

With respect to

Dr. McPhee concluded

He further stated:

the symptoms consistent with a radiculopathy . . . in

2

addition to exam findings in a nerve root distribution with

3

some consistency of the involved level based on specific

4

sensory exam findings, muscle stretch reflexes and strength

5

on manual muscle testing of multiple muscles innervated by

6

the same nerve roots.”

7

although the MRI indicated possible nerve root irritation

8

and the EMG was consistent with radiculopathy, “the file

9
United States District Court
Northern District of California

1

lacks specific clinical correlation of symptoms and specific

AR 887.

Dr. McPhee concluded that,

10

findings on neurological exam.”

11

recommended that “it may be helpful to obtain an IME with

12

detailed neuromuscular exam to determine if there is

13

clinical correlation for a radiculopathy.”

14

AR 887.

Dr. McPhee

AR 888.

On August 1, 2016, Defendant sent a letter to Plaintiff

15

upholding its original adverse determination because “there

16

was a lack of clinical examination findings” to support

17

radiculopathy.

18

recommended by Dr. McPhee.

19
20

AR 860.

Defendant did not order an IME as

On September 2, 2016, Plaintiff filed suit in this
Court under 29 U.S.C. § 1132(a)(1)(B).

21

LEGAL STANDARD

22

The court reviews de novo whether the plan administrator

23

correctly or incorrectly denied benefits.

24

Pension Plan for Contract Employees, 484 F.3d 1211, 1217 (9th

25

Cir. 2007).

26

the evidence in the administrative record.

27

bears the burden of proving that he is entitled to benefits under

28

the Plan.

Opeta v. Nw. Airlines

In most cases, the court bases its review solely on
Id.

The plaintiff

Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1294
12

1

(9th Cir. 2010).

2

Court evaluates the persuasiveness of each party’s case, which

3

necessarily entails making reasonable inferences where

4

appropriate.”

5

Program, 718 F. Supp. 2d 1151, 1162 (N.D. Cal. 2010).

“In reviewing the administrative record, the

Schramm v. CNA Fin. Corp. Insured Grp. Ben.

6

DISCUSSION

7

The parties agree that Plaintiff demonstrated that he was
disabled as defined by the Plan.

9
United States District Court
Northern District of California

8

is whether the radiculopathy exemption to the NMS limitation

10

The central issue in this case

applies.

11

Plaintiff argues that Defendant bears the burden of

12

establishing the NMS limitation applies; Defendant disagrees.

13

Plaintiff cites a number of out-of-circuit cases in support of

14

his contention that the insurer bears the burden of showing that

15

an exclusion from coverage applies.

16

Standard Life Ins. Co., 836 F.3d 600, 609 (6th Cir. 2016)

17

(holding that the insurer “bears the burden to show that the

18

exclusion on which it based denial of benefits, the Mental and

19

Nervous Disorder Limitation, applies in this case”); Owens v.

20

Rollins, Inc., 2010 WL 3843765, at *2 (E.D. Tenn. Sept. 27, 2010)

21

(holding that the insurer bears the burden of proving the

22

limitation on benefits, which is a coverage exclusion and

23

affirmative defense to coverage); Deal v. Prudential Ins. Co. of

24

Am., 263 F. Supp. 2d 1138, 1143 n.2 (N.D. Ill. 2003) (“The burden

25

of proving that a claim falls within an exclusion rests squarely

26

on the insurer.”).

27
28

See Okuno v. Reliance

Plaintiff acknowledges Hoffmann v. Life Ins. Co. of N. Am.,
which addresses facts similar to the present situation.
13

2014 WL

7525482 (C.D. Cal. Dec. 29, 2014), aff’d, 669 F. App’x 399 (9th

2

Cir. 2016).

3

mental illness limitation on coverage was not an exclusion from

4

coverage because the insurer was still required to pay benefits

5

for two years.

6

the burden of showing that the two-year mental illness limitation

7

does not apply.

8

stating that the “district court did not err in placing the

9
United States District Court
Northern District of California

1

burden on [the claimant] to show that he has Bipolar II,” an

There, the district court held that a two-year

Id. at *5.

Id.

The claimant, not the insurer, bears

The Ninth Circuit affirmed the decision,

10

“exemption” from the mental illness limitation.

11

Ins. Co. of N. Am., 669 F. App’x 399, 400 (9th Cir. 2016).

12

Ninth Circuit further explained that, even if the two-year

13

limitation was an exclusion, the insurer “met that burden by

14

demonstrating that [the claimant] is disabled due to a mental

15

illness.”

16

kind of mental illness--Bipolar II-- that is exempted from the

17

policy’s limitation provision.”

18

that the plaintiff had the burden to prove he was exempted from

19

the limitation, “just as he would have the burden to prove his

20

eligibility for coverage.”

21

Cas. & Sur. Co., 26 F.3d 893, 894–95 (9th Cir. 1994) (noting

22

that, “although courts are split on this issue, the majority of

23

decisions place the burden on the insured” to prove that an

24

exception to the insurance policy exclusion applies).

25

Id.

Hoffmann v. Life
The

“The real issue is whether [the claimant] has a

Id.

Id.

The Ninth Circuit concluded

See also Aeroquip Corp. v. Aetna

Here, Plaintiff similarly seeks to prove that an exemption

26

to a limitation on coverage applies.

27

that his disability is a neuromuscular, musculoskeletal, or soft

28

tissue disorder that falls within the purview of the NMS
14

Plaintiff does not dispute

1

limitation.

2

which is an exemption to the NMS limitation.

3

follows the reasoning of Hoffman and holds that Plaintiff bears

4

the burden of showing he has radiculopathy, an exemption to the

5

NMS limitation, just as he would bear the burden of proving that

6

he is eligible for coverage.

7

Instead, Plaintiff argues that he has radiculopathy,
Thus, the Court

Thus, the Court considers whether Plaintiff has shown by a
preponderance of the evidence that the radiculopathy exemption

9
United States District Court
Northern District of California

8

applied at the time that his benefits ended due to the NMS

10

limitation, that is, on September 6, 2015.

11

1295.

12

which is defined as a “disease of the peripheral nerve roots

13

supported by objective clinical findings of nerve pathology.”

14

50-51.

15

Muniz, 623 F.3d at

The policy requires “objective evidence” of radiculopathy,

AR

Plaintiff asserts that he has presented objective evidence

16

of radiculopathy, including: (1) the two EMGs conducted by Dr.

17

Standage, dated November 23, 2013 and February 10, 2016, which

18

show lumbar radiculopathy that has progressed from the right side

19

at L5 in 2013 to both lower extremities in 2016, (2) the March 1,

20

2016 MRI, which shows mild to moderate canal stenosis and

21

moderate to severe left neural foraminal narrowing, and (3) Dr.

22

Reynold’s March 14, 2016 report, which reported the results of

23

clinical examination (such as a positive straight leg test

24

bilaterally and decreased sensation light touch and pinprick to

25

Plaintiff’s left upper extremity and right lower extremity) and

26

various diagnostic tests, and diagnosed lumbar radiculopathy.

27

addition, Plaintiff contends that various other physicians’

28

clinical findings support the objective evidence.
15

From 2013

In

through 2016, several medical professionals conducted clinical

2

examinations and reviewed diagnostic tests of Plaintiff’s

3

condition and diagnosed him with radiculopathy.

4

2380 (Dr. Hammon); AR 2563 (PA Aulakh); AR 1867-1881 (Dr.

5

Standage); AR 2887 (Dr. Renbaum); AR 2078-2083 (Dr. Mitchell).

6

The Court finds particularly persuasive Dr. Reynold’s March 14,

7

2016 report, which is reasonably close in time to the date

8

Plaintiff’s benefits terminated, suggesting he had radiculopathy

9
United States District Court
Northern District of California

1

at that time.

See, e.g., AR

See Fontana v. Guardian Life Ins., 2009 WL 73743,

10

at *4 (N.D. Cal. Jan. 12, 2009) (citing Smith v. Bowen, 849 F.2d

11

1222, 1225 (9th Cir. 1988)) (holding that “reports containing

12

observations made after the period for disability are relevant to

13

assess the claimant’s disability.”).

14

Defendant points to some contrary evidence in the record,

15

such as Dr. Sun’s report that Plaintiff did not exhibit

16

radiculopathy as well as Dr. McPhee’s and Dr. Madireddi’s medical

17

opinions.

18

evidence described above.

19

originally did not consider the objective evidence submitted by

20

Plaintiff.

21

not consider the evidence, he issued revised findings which came

22

to the same conclusion as before.

23

suspect, especially considering he acknowledged that Plaintiff’s

24

MRI and EMG tests were not inconsistent with radiculopathy, but

25

nevertheless dismissed the test results as not the best evidence

26

of the disease.

27

stated previously that “[n]eedle electromyography [EMG] is the

28

single most useful procedure diagnostically in cases of suspected

On balance, this evidence does not outweigh the ample
Moreover, Dr. McPhee’s opinion

After it was pointed out to Dr. McPhee that he did

Dr. McPhee’s addendum appears

Dr. McPhee did so despite the fact that he has

16

1

radiculopathy.”

2

at *8 (D. Mass. Sept. 21, 2012).

3

Dr. McPhee’s opinion to be persuasive.

4

Court affords limited weight to her opinion because she conducted

5

a paper review and did not conduct any clinical examination of

6

Plaintiff.

7

without providing any additional analysis, calling her

8

conclusions into question.

United States District Court
Northern District of California

9

Brien v. Metro. Life Ins. Co., 2012 WL 4370677,
Thus, the Court does not find
As for Dr. Madireddi, the

Dr. Madireddi also provided an addendum to her report

Defendant responds that the evidence presented by Plaintiff

10

is not “objective clinical evidence.”

11

to anything in the Plan defining clinical evidence, or explain

12

why Plaintiff’s evidence does not qualify as such.

13

guidance on this point, the Court declines to reject Plaintiff’s

14

evidence on this basis.

15

Defendant does not point

Without any

Defendant also contends that the clinical findings proffered

16

by Plaintiff were from long before and long after September 6,

17

2015, and thus do not support an inference that Plaintiff had

18

radiculopathy when Defendant terminated Plaintiff’s benefits.

19

Defendant submits no evidence showing that Plaintiff’s

20

radiculopathy could disappear and reappear within a matter of

21

months.

22

shown that it is more likely than not that Plaintiff had

23

radiculopathy when his benefits were terminated.

24

Absent such evidence, the Court finds that Plaintiff has

CONCLUSION

25

For the foregoing reasons, the Court GRANTS Plaintiff’s

26

motion for judgment (Docket No. 33) and DENIES Defendant’s cross-

27

motion for judgment (Docket No. 34).

28

term disability benefits shall be reinstated.
17

Plaintiff’s claim for longPlaintiff is

1

entitled to an award of long-term disability benefits from

2

September 6, 2015 through the entry of judgment, plus pre-

3

judgment interest.

4

Defendant shall calculate the amount of past benefits and
interest due in the first instance and the parties shall file a

6

stipulated form of judgment within fourteen days of the Court’s

7

Order, unless a dispute concerning the amount due arises and

8

cannot be resolved without Court intervention, in which case the

9
United States District Court
Northern District of California

5

parties shall each file a proposed form of judgment and a brief

10

not exceeding two pages explaining why their calculation of the

11

amount due is correct.

12

Plaintiff may file a motion for attorneys’ fees and costs

13

within fourteen days of entry of judgment.

14

§ 1132(g)(1).

15

must meet and confer for the purpose of resolving all disputed

16

issues relating to attorneys’ fees before Plaintiff files his

17

motion.

18

See 29 U.S.C.

Pursuant to Civil Local Rule 54–5, the parties

IT IS SO ORDERED.

19
20

Dated: May 1, 2018
CLAUDIA WILKEN
United States District Judge

21
22
23
24
25
26
27
28
18