Gordon v. Metropolitan Life Insurance Company et al

Filing 72

ORDER denying Plaintiff's 62 Motion for Summary Judgment; granting Defendant's motion for summary judgment. The Clerk shall close this file. Signed by Judge Edward J. Davila on 09/07/2017. (ejdlc3, COURT STAFF) (Filed on 9/7/2017) Modified on 9/7/2017 (ejdlc1S, COURT STAFF).

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN JOSE DIVISION 9 10 ROBERT GORDON, Case No. 5:10-cv-05399-EJD Plaintiff, 11 United States District Court Northern District of California v. 12 13 METROPOLITAN LIFE INSURANCE COMPANY, 14 Defendant. ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 62, 64 15 16 17 I. INTRODUCTION In this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. 18 §1001, et seq. (“ERISA”), Plaintiff Robert Gordon (“Plaintiff”) seeks long term disability benefits 19 from Defendant Metropolitan Life Insurance Company (“Defendant”). Presently before the Court 20 are the parties’ competing motions for summary judgment. The Court finds it appropriate to take 21 the motions under submission for decision without oral argument pursuant to Civil Local Rule 7- 22 1(b). For the reasons set forth below, the Court DENIES Plaintiff’s motion for summary judgment 23 and GRANTS Defendant’s motion for summary judgment. 24 25 26 27 28 II. BACKGROUND Plaintiff worked as a Senior Staff Systems Programmer with Ashton-Tate starting in 1989. In 1991, Ashton-Tate was purchased by Borland Software (“Borland”) and Plaintiff worked for Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 1 Borland until May 1, 2002. As a Borland employee, Plaintiff was eligible for LTD benefits 2 through the Borland Software Corporation LTD Plan (“the Plan”), which is governed by ERISA. 3 Defendant MetLife funded LTD benefits under the Plan and was also the claim administrator for 4 the LTD claims. The Plan includes the following definition of “Disability,” subject to all other 5 Plan terms and conditions: 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 “Disabled” or “Disability” means that, due to sickness, pregnancy or accidental injury, you are receiving Appropriate Care and Treatment from a Doctor on a continuing basis; and 1. during your Elimination Period and the next 60 month period, you are unable to earn more than 80% of your Predisability Earnings or Indexed Predisability Earnings at your Own Occupation for any employer in your Local Economy; or 2. after the 60 month period, you are unable to earn more than 80% of your Indexed Predisability Earnings from any employer in your Local Economy at any gainful occupation for which you are reasonably qualified taking into account your training, education, experience and Predisability Earnings. Your loss of earnings must be a direct result of your sickness, pregnancy or accidental injury. Economic factors such as, but not limited to, recession, job obsolescence, paycuts and job-sharing will not be considered in determining whether you meet the loss of earnings test. 17 Administrative Record (“AR”) at 001470. The Plan contains the following limitation for 18 disabilities due to a mental or nervous disorder or disease: 19 Limitation For Disabilities Due to Particular Conditions 20 Monthly Benefits are limited to 24 months during your lifetime if you are Disabled due to a Mental or Nervous Disorder or Disease, unless the Disability results from: 21 22 23 24 25 26 27 28 1. schizophrenia; 2. bipolar disorder; 3. dementia; or 4. organic brain disease. “Mental or Nervous Disorder or Disease” means a medical condition of sufficient severity to meet the diagnostic criteria established in the current Diagnostic And Statistical Manual of Mental Disorders. You must be receiving Appropriate Care and Treatment for your condition by a mental health Doctor. Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2 1 AR at 001485. 2 On or about April 19, 2002, Plaintiff commenced a period of short term disability. He 3 returned to work on May 1, 2002, but was terminated that same day due to performance issues and 4 his behavior at a meeting with Human Resources about his performance issues. MetLife AR at 5 001412-13. 6 On October 22, 2009, seven years after Plaintiff allegedly became disabled, Plaintiff 7 submitted a claim for LTD benefits for a disability beginning April 19, 2002. AR at 001440. He 8 indicated on the claim form that he suffered from the following conditions that prevented him 9 from performing his job: arthritis in the spine and joints; severe insomnia; collapsed thoracic 10 vertebra; very large spinal osteophytes; herniated vertebral discs; severe cervical foraminal 11 United States District Court Northern District of California stenosis; depression; chronically active viruses; anxiety; ADD; heart palpitations; impaired short12 term memory; migraine headaches; chronic system inflammation; left knee surgery; cervical spine 13 surgery; left shoulder surgery; Apico/jaw surgery; sinus surgery; thoracic and lumbar disc disease; 14 chronic esophagitis; and chronic sinusitis. AR at 001440-41. Accompanying Plaintiff’s claim 15 form was a note from his treating physician, Dr. Resneck-Sannes, dated October 15, 2009, which 16 indicated that the most recent date of treatment was October 15, 2009, and stated that Plaintiff had 17 18 19 20 “disabling back & neck pain for degenerative disc disease,” “chronic migraine headaches,” and “failed knee and shoulder surgery” since February of 2002. Id. In May of 2010, Defendant notified Plaintiff that it lacked “required Employer information to complete the initial review” of Plaintiff’s claim. AR at 001079. More specifically, Defendant 21 stated that it lacked verification from Borland that Plaintiff was eligible for LTD coverage. 22 23 24 Defendant further indicated that Plaintiff’s claim would be closed until it received the employer verification, but also stated Plaintiff could appeal the decision because the claim “was denied in whole or in part.” AR at 001080. Plaintiff appealed Defendant’s decision (AR at 001053), and 25 initiated this action on November 29, 2010. See Compl., Docket Item No. 1. 26 27 28 Pursuant to stipulation, the instant action was stayed while Defendant resolved Plaintiff’s Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 3 1 appeal. On March 30, 2012, Defendant determined that Plaintiff had coverage under the Borland 2 Plan through May 1, 2002. AR at 000947. A few days later, Plaintiff faxed to Defendant certain 3 forms Defendant required to determine his eligibility for benefits. AR at 000961. 4 On December 7, 2012, Defendant notified Plaintiff his LTD claim was denied because the 5 information in the claim file did not support a finding of disability within the meaning of the Plan. 6 AR at 000776. On May 7, 2013, Plaintiff appealed Defendant’s decision. Defendant has not 7 issued a formal decision on Plaintiff’s appeal. 8 9 The court lifted the stay and restored this case to active litigation on January 2, 2015. See Docket Item No. 48. By Order dated April 29, 2015, this Court determined that Defendant’s benefit decision is subject to review under an abuse of discretion standard. See Order Denying 11 United States District Court Northern District of California 10 Plaintiff’s Motion for Summary Adjudication. This Court noted, however, that procedural 12 violations of ERISA’s requirements are evidence of arbitrary and capricious decision making. Id. 13 at 7:26-8:3 (citing Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 985 (9th Cir. 2005) and 14 Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 972 (9th Cir. 2006) (“A procedural 15 irregularity, like a conflict of interest, is a matter to be weighed in deciding whether an 16 administrator’s decision was an abuse of discretion.”)). The Court also advised the parties that it 17 would conduct a review of Defendant’s benefit decision “with a heightened degree of skepticism 18 and will consider additional evidence submitted with Plaintiff’s notice of appeal.” Id. at 8:4-6. 19 (citing Hinz v. Hewlett Packard Co. Disability Plan, No. 10-CV-03633-LHK, 2011 U.S. Dist. 20 LEXIS 386454, at *24 (N.D. Cal. March 30, 2011). 21 Plaintiff now moves for summary judgment, contending that he has been disabled within 22 the meaning of the Plan since he stopped working on April 19, 2002. Defendant opposes 23 Plaintiff’s motion for summary judgment and also moves for summary judgment in its favor, 24 contending that its determination was reasonable, supported by the evidence, and not an abuse of 25 discretion. 26 27 28 III. STANDARDS Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 4 1 Ordinarily, a motion for summary judgment should be granted if “there is no genuine 2 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 3 Fed.R.Civ.P. 56(a); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The moving 4 party bears the initial burden of informing the court of the basis for the motion and identifying the 5 portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that 6 demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 7 323 (1986). If the moving party meets this initial burden, the burden then shifts to the non-moving 8 party to go beyond the pleadings and designate specific materials in the record to show that there 9 is a genuinely disputed fact. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. 11 United States District Court Northern District of California 10 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). IV. DISCUSSION 12 13 14 A. Standard of Review Under the abuse of discretion standard of review, “the plan administrator's interpretation of 15 the plan ‘will not be disturbed if reasonable.’” Day v. AT&T Disability Income Plan, 698 F.3d 16 1091, 1096 (9th Cir. 2012) (citing Conkright v. Frommert, 559 U.S. 506 (2010)). The test for 17 abuse of discretion in a factual determination is whether “we are left with a definite and firm 18 conviction that a mistake has been committed,” and the court “may not merely substitute [its] view 19 for that of the fact finder.” Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th 20 Cir. 2011), citing United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009). “To do so, we 21 consider whether application of a correct legal standard was (1) illogical, (2) implausible, or (3) 22 without support in inferences that may be drawn from the facts in the record.” Id. at 676. 23 B. Defendant’s Benefit Determination Was Not Unreasonable 24 The Administrative record shows that Plaintiff suffered mentally and emotionally as of 25 April 19, 2002, and there is evidence that Plaintiff’s condition was directly related to issues at his 26 workplace and with his supervisor. There is also evidence that Plaintiff suffered from chronic 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 5 1 pain. The issue before the court, however, is not whether Plaintiff suffered from these medical 2 challenges. Instead, the proper inquiry is whether Defendant’s disability determination was 3 reasonable. Day, supra. 4 The Administrative Record contains conflicting medical opinions regarding whether 5 Plaintiff’s mental condition and chronic pain rendered Plaintiff disabled within the meaning of the 6 Plan as of April 19, 2002. Nevertheless, Defendant’s determination that Plaintiff was not 7 “disabled” within the meaning of the Plan cannot be characterized as illogical, implausible or 8 without support in inferences that may be drawn from the record. 9 10 1. Defendant’s Medical Reviewers Conducted a Thorough Review of Plaintiff’s Record Defendant’s medical reviewers conducted a lengthy and thorough review of Plaintiff’s United States District Court Northern District of California 11 records. These records confirm that Plaintiff suffered from multiple medical conditions as of 12 April 19, 2002. A diagnosis alone, however, does not necessarily establish a disability. Jordan v. 13 Northrop Grumman Corp. Welfare Benefit Plan, 63 F.Supp.2d 1145, 1157 (C.D. Cal. 1999), aff’d 14 370 F.3d 8699 (9th Cir. 2004), disapproved on other grounds, Montour v. Hartford Life and Acc. 15 Ins. Co., 588 F.3d 623 (9th Cir. 2009). 16 17 Dr. Koopman’s Assessment in April of 2002 Included in the Administrative Record is an April 19, 2002 workers’ compensation report 18 by Dr. Jane Koopman with the Santa Cruz Medical Clinic. AR at 001111-12. Dr. Koopman 19 described Plaintiff as “a 49-year old staff systems programmer at Borland who presents 20 complaining of emotional distress” arising out of Plaintiff’s working conditions and a hostile 21 supervisor. AR at 001111. Specifically, Dr. Koopman’s notes included the following description 22 of Plaintiff’s work conditions: 23 24 25 26 27 28 History here is that there have been some changes of personnel over the last nine months at his work. This has placed a great deal of stress on his boss who has been passing some of this on to the patient. He has been threatening to fire him and berating him in public. He has been given contradictory orders. The patient has complained to Human Resources three times in the past couple of months. Yesterday, there was an episode where his boss accused Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 6 him of mismanaging a project that was not even his. The patient turned around and walked away. His boss approached him in such a manner, that he actually felt physically threatened. There was no altercation, but shortly afterward the patient felt quite nauseated with his heart racing, sweating and went and informed his employer that he was leaving work for the day. 1 2 3 4 AR at 001111. Dr. Koopman noted that Plaintiff was taking blood pressure medication, Ativan 5 and Topamax; that he was having difficulty falling asleep and waking up; that he has been having 6 trouble concentrating and difficulty with his memory; that he reported feeling depressed; and that 7 “heart racing episodes” have been occurring for several days, but these episodes do not involve 8 shortness of breath, chest pain or nausea. AR at 001111-12. Dr. Koopman observed that Plaintiff 9 10 initially had difficulty even starting to speak and appeared very stressed. Dr. Koopman’s assessment was that Plaintiff had “1. Stress reaction with both anxiety and depressive features. 2. 11 United States District Court Northern District of California hypertension. 3. Complaints of palpitations-probably part of his anxiety but would like to rule out 12 arrhythmia.” AR at 001112. Testing later confirmed that Plaintiff had no heart condition. AR at 13 001118. 14 According to a Doctor’s First Report of “Occupational Injury or Illness” dated April 22, 15 2002, Plaintiff reported to Dr. Koopman that constant threats and harassment from his boss caused 16 him to feel faint and nauseated, and to suffer elevated blood pressure, rapid heartbeat and 17 sweating. AR at 001132. On April 26, 2002, Plaintiff had a follow up visit with Dr. Koopman. 18 The notes of the visit indicate that a Worker’s Compensation attorney recommended that Plaintiff 19 return to work if he could be transferred to another department, and that Plaintiff planned to return 20 to work the following Monday. Dr. Koopman’s assessment was that Plaintiff had: “1. Stress 21 reaction with both anxiety and depressive features. 2. Hypertension in good control today. 3. 22 History of palpitations; pending Holter results.” AR at 001113. 23 Dr. Zweng’s 2002 Assessment 24 On April 29, 2002, Plaintiff was seen by Dr. Dean G. Zweng at the Santa Cruz Medical 25 Clinic, who noted the following: 26 27 28 A 49-year old who has been off work due to anxiety and job stress. Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 7 He feels like he needs to get back to work, although it does not feel too much better. He did meet with his employers and some initial changes were made to decrease his level of stress at work. On further questioning, he has had some chronic feelings of irritability and inability to make decisions, sleep disturbance, anxiety and agitation. In low mood and tearfulness. He has a bedridden daughter for four years at home and a history of depression. He has been on different anti-depressant medications in the past mainly to control his chronic pain issues of his neck and back. He was able to tolerate Paxil in the past; however, it did not help his chronic pain. He has also been on Celexa recently which caused him too much agitation, and he could not tolerate Zoloft or try a cycle of antidepressants. He also has a history of hypertension. 1 2 3 4 5 6 7 8 AR at 001116. Dr. Zweng’s assessment was that Plaintiff had “[a]djustment reaction with anxiety 9 and depression with probably underlying major depression.” Id. Dr. Zweng released Plaintiff to 10 return to work. Id. Dr. Mears’ 2002 Assessment United States District Court Northern District of California 11 12 On May 1, 2002, Plaintiff was seen by Dr. William C. Mears at the Santa Cruz Medical 13 Clinic. Dr. Mears noted that Plaintiff “continues with anxiety, rapid heartbeat, unable to sleep. . . . 14 Also increased anxiety at work. He said that he was suspended today.” AR at 001119. Dr. 15 Mears’ assessment was that Plaintiff had: “1. Palpitations; work-up in progress. 1. Adjustment 16 disorder with anxiety and depression related to job stressors. 3. Insomnia, possibly related to his 17 Paxil.” Id. Dr. Koopman’s May 4, 2002 Assessment 18 19 20 Plaintiff was seen for the third time by Dr. Koopman on May 4, 2002. The notes from this visit describe the following: 21 22 23 24 25 26 27 28 [Plaintiff] returns today complaining of diarrhea. He is uncertain whether this is a side effect of some of the medications he has been placed on or of another etiology. Since I last saw him on 4/26, patient returned to work the following Monday which would have been 4/29. I had given a note saying he was okay to return to work as long as he was in a different department than his usual one. He reports that he was told by his Human Resources person there that that was not acceptable and that he had to go back and see the doctor and get a note saying that he was okay to go back to his usual work. Apparently, he saw Dr. Zweng here who put him on Paxil and did send him off with a note saying he was okay to return to his usual Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 8 duties. He went to work the following day on 4/30 and was told he was suspended. He was having a great deal of difficulty sleeping at night and was seen the following day on Wednesday, 5/1, by Dr. Mears who suggested he take the Paxil in the a.m. and also gave him Clonazepan to take a bedtime. He was wearing the Holter monitor that had been arranged for the palpitations he has been having the whole of Tuesday and reports that his heart did seem like it was racing at times during then so presumably we would have caught anything that was there. He then received a letter from his employer Thursday, 5/2, saying that he had been fired. . . . 1 2 3 4 5 6 AR at 001122. Dr. Koopman’s assessment was that Plaintiff suffered from anxiety/depression 7 and diarrhea. Dr. Mears’ May 2002 Assessment 9 Plaintiff returned to Dr. Mears on May 11, 2002, at which time Dr. Mears noted that 10 Plaintiff’s palpitations seem to be better; that Plaintiff was suffering from diarrhea; and that 11 United States District Court Northern District of California 8 Plaintiff’s “stress has increased” and that he “is still feeling as anxious and depressed as he was 12 before.” AR at 001126. Dr. Mears made the following assessment: “1. Palpitations; improved on 13 Tenormin. 2. Diarrhea, possibly secondary to the Tenormin (Atenolol) versus secondary to 14 Blastocystis. 3. Adjustment disorder, anxiety and depression due to job stress.” Id. 15 16 Dr. Meade’s March 2003 Assessment In a March 21, 2003 Workers’ Compensation Report, Dr. Michael G. Meade summarized 17 Plaintiff’s history (as told by Plaintiff) as follows. Plaintiff was hired at Ashton-Tate through a 18 vocational rehabilitation program after a back injury. AR at 001146. Plaintiff was happy working 19 as a systems software worker until 2000, when a new CEO was hired. Id. Plaintiff felt 20 overwhelmed, and his supervisor began harassing him on a daily basis, demanding that Plaintiff 21 work faster. Id. When asked about non-industrial stressors, Plaintiff told Dr. Meade that he was 22 taking care of his ill 18 year-old daughter, who had been bedridden for the past ten years. Id. 23 Plaintiff told Dr. Meade that caring for his daughter was stressful, but that “the stress has been 24 present for five years with no sign of disability proceeding from it.” Id. Dr. Meade also noted 25 that Plaintiff “denies other medical, relationship, family, legal and financial problems.” Id. 26 27 28 Dr. Meade opined that Plaintiff was “suffering from an episode of major depression, which Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 1 is of severe nature, and is characterized by serious generalized anxiety and discrete panic attacks.” 2 AR at 001155. Further, Dr. Meade opined that Plaintiff’s depression “is superimposed on an 3 underlying dysthymia, and chronic, probable lifelong Attention Deficit Hyperactivity Disorder.” 4 Id. Dr. Meade also stated: that “[t]here is ample medical evidence on today’s examination to 5 establish that the patient is currently temporarily totally disabled on a psychiatric basis”; that 6 Plaintiff “is not permanent and stationary with respect to his mental illness”; and that “it is quite 7 clear from the history and the medical records that this depression developed in response to 8 industrially related stress, namely the harassment and threatening of the patient by his immediate 9 supervisor, leading ultimately to the disciplinary action of May 2002, the proximate cause of his 10 abrupt termination May 1, 2002.” AR at 001155-56. Assessments re Neck and Back Pain from 2003 United States District Court Northern District of California 11 12 In August of 2003, Plaintiff was evaluated by Dr. Michael D. Butcher for multiple 13 musculoskeletal complaints including in the following order of severity: neck pain, upper back 14 pain, shoulder pain, left knee pain and hip pain. Dr. Butcher determined that Plaintiff appeared to 15 have stiffness and limited range of motion in the neck and back, and swelling in the left knee. AR 16 at 001159. Plaintiff had MRIs taken of his spine, left and right shoulders, and left knee. On 17 August 29, 2003, Dr. Samir Sharma reported that the MRI of the cervical spine showed cervical 18 spondylosis markedly at C5-6 with disc involvement and root involvement at the C5-6 level. On 19 the lumbosacral MRI, Dr. Sharma saw evidence of lumbar stenosis, particularly at L4-5 and L3-4 20 levels. AR at 001180. 21 Included in the Administrative Record is a “To Whom It May Concern” letter written by 22 Dr. Butcher dated September 17, 2003, in which Dr. Butcher opined that Plaintiff is unable to 23 work due to multiple musculoskeletal problems, including degenerative disc disease of the neck 24 and lower back, arthritis in the right shoulder and torn cartilage in the left knee. AR at 001193. 25 On October 28, 2003, Dr. Butcher prepared another report in which he opined again that Plaintiff 26 was disabled from gainful employment. AR at 001198. There is also a letter dated November 14, 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 1 2003 from Dr. Rosemaria Gennuso to Dr. Butcher, stating that Plaintiff had “neck pain notable in 2 all directions, worse with extension.” AR at 001201. Dr. Gennuso noted, however, that although 3 Plaintiff has had longstanding trouble with his neck, Plaintiff had no treatment for his neck for the 4 past eighteen months. AR at 001200. 5 6 Dr. Summa’s Evaluations from 2010 and 2012 Included in the Administrative Record are two evaluations by Dr. Chris Summa, a spinal 7 and orthopedic surgeon. The New Patient Evaluation dated September 2, 2010 stated that Plaintiff 8 suffered a severe cycling accident approximately 20 years ago in which he fell off a cliff, and that 9 Plaintiff had back pain for many years. AR at 000807. Plaintiff reported that his back pain worsened over the last five years, and that he could not stand or sit for very long, and that his daily 11 United States District Court Northern District of California 10 activities, such as washing dishes and doing laundry, had become difficult. Id. Plaintiff had not 12 had any back surgeries, although he did undergo a foraminotomy of the cervical spine in 2004. Id. 13 Plaintiff also reported that he had numerous nerve blocks, medications, physical therapy, traction, 14 chiropractic and acupuncture treatment. Id. Dr. Summa’s medical impression was that Plaintiff 15 had a T7-T8 disc herniation with thoracic degenerative disc disease. Id. 16 Plaintiff returned to Dr. Summa on May 31, 2012. Dr. Summa reported that Plaintiff was 17 experiencing worsening difficulties with sitting and standing despite eighteen sessions of 18 “Rolfing.” AR at 000810. Dr. Summa’s medical impression was that Plaintiff had L3-L4 and L4- 19 L5 advanced degenerative disc disease. Id. Dr. Summa recommended fusion surgery, but 20 Plaintiff was opposed to surgery. 21 2. Independent Physician Consultants Concluded Plaintiff Was Not Disabled 22 Defendant retained three Independent Physician Consultants (“IPC”), Dr. Lee Becker, Dr. 23 Sugerman and Dr. Jane St. Clair, to review Plaintiff’s medical records. Each of the consultants 24 concluded that Plaintiff was not disabled within the meaning of the Plan. 25 26 27 28 Assessments of IPC Dr. Lee Becker On July 3, 2012, Defendant obtained a review from Dr. Lee Becker, a Board-certified Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 1 psychiatrist. AR at 00935-945. Dr. Becker summarized Plaintiff’s medical records, and opined 2 that “[o]verall, the information available to review did not support significant, global psychiatric 3 functional limitations, along with objective findings, to preclude full-time occupational 4 functioning from the date in question forward on an ongoing basis.” AR at 000942. 5 Dr. Becker’s IPC report was sent to Dr. Andrew Abarbanel, one of Plaintiff’s treating 6 psychiatrists. Dr. Abarbanel described Dr. Becker’s report as accurate, and acknowledged that 7 Plaintiff’s difficulties were largely the result of workplace mistreatment. Dr. Abarbanel, however, 8 opined that “the nature of the psychiatric injuries resulting from the abusive treatment make it very 9 likely, in my estimation, that [Plaintiff] sustained an ongoing disability.” AR at 00874. Dr. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 Abarbanel reasoned as follows: Specifically, his mood disorder (by my thinking best diagnosed as Major Depressive Disorder, Recurrent, 296.32) and his anxiety disorder (by my thinking best diagnosed as an anxiety disorder with post-traumatic features, 300.00). The former disorder is an ongoing disorder that, once exacerbated as it was, makes it much more likely for it to persist. The latter, almost by definition of the posttraumatic features tend to persist . . . My point, then, is that the reports establish the effects, industrially caused, the company’s actions precipitated are by their nature very likely to persist. That fact, plus the fact that Mr. Gordon is now ten years older and about to turn 60, make it very likely that a significant degree of disability would be identified if he is examined currently. I would very much recommend that examination now if you intend to establish ongoing disability. AR at 000874-75. On October 9, 2012, Dr. Becker prepared an addendum to his initial report to discuss Dr. 21 Abarbanel’s letter. Dr. Becker determined that the additional information from Dr. Abarbanel did 22 not impact the initial report, stating: 23 24 25 26 27 28 The psychiatric response letter indicates no major issues with the psychiatric consultant report findings. The letter clarifies the clinician’s working diagnoses, as well as describing causative factors contributing, which have been previously noted. The clinician speculates on disability status. However, no additional psychiatric clinical information was provided for review, such as additional detailed objective mental health findings, progress notes, or psychological testing and ongoing treatment by the psychiatrist Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 was not described. 1 2 3 4 AR at 000797. Assessments of IPC Dr. Sugerman After Plaintiff filed an appeal, Defendant retained Dr. Peter Sugerman, a Board-certified 5 psychiatrist, to prepare an IPC report dated July 16, 2013. Dr. Sugerman determined that there 6 was insufficient evidence of a psychiatric functional impairment. AR at 671. In an addendum 7 dated January 28, 2014, Dr. Sugerman reiterated his original opinion that from the outset, 8 Plaintiff’s condition was viewed as chronic and reflective of situational factors, but not of such a 9 severity that required intensive treatment. AR at 000581-82. In another addendum dated March 14, 2014, Dr. Sugerman considered additional information submitted by Dr. Abarbanel, but 11 United States District Court Northern District of California 10 concluded that the new information amounted to opinion only, without detailed, objective, global 12 mental health data. AR at 000552 . Dr. Sugerman prepared another addendum dated August 18, 13 2014, in which he confirmed his prior assessment. AR at 000359-364. 14 15 Assessments of IPC Dr. Jane St. Clair On August 2, 2013, Dr. Jane St. Clair prepared an IPC report. Dr. St. Clair, who is Board- 16 certified in Occupational Medicine, focused her review on Plaintiff’s alleged shoulder, knee and 17 spinal impairments. Dr. St. Clair concluded that there was no documentation to show that 18 Plaintiff’s musculoskeletal complaints existed with such severity as to cause restrictions and 19 limitations on April 19, 2002. AR at 675-683. 20 After speaking to Plaintiff’s physician, Dr. Resneck-Sannes, Dr. St. Clair prepared an 21 addendum dated August 25, 2013. AR at 655-656. According to the addendum, Dr. Resneck- 22 Sannes told Dr. Clair that Plaintiff had had various musculoskeletal complaints for as long as he 23 had known Plaintiff, and confirmed that he did not have any records for April through December 24 of 2002. Plaintiff was seen by Dr. Resneck-Sannes on February 5, 2002, and again on June 23, 25 2003: there are no records of Plaintiff having been seen by Dr. Resneck-Sannes between February 26 2002 and June 2003. AR at 00656. Dr. St. Clair prepared additional addendums dated January 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 1 28, 2014 (AR at 000592-93), March 22, 2014 (AR at 000564-567), and June 29, 2014 (AR at 2 000390-92). 3 In light of the assessments prepared by Dr. Becker, Dr. Sugerman and Dr. St. Clair, 4 Defendant could reasonably conclude that despite Plaintiff’s medical ailments, he could perform 5 his Own Occupation for a different employer. 6 3. Plaintiff Has Not Shown that Defendant’s Disability Determination is Unreasonable 7 To substantiate his claim of disability, Plaintiff relies on, among other things, the opinion 8 of Dr. Steven Padgitt dated December 9, 2002, approximately six months after Plaintiff’s 9 termination, which stated: 10 United States District Court Northern District of California 11 12 13 14 15 This is to verify that I have begun a course of treatment with Robert Gordon. The patient reports a long-standing history of attention/concentration (Attention Deficit Disorder) problems. It is also clear from his historical report that he suffers from Post Traumatic Stress Disorder, an anxiety disorder resulting from environmental stress/trauma. The PTSD symptoms are exacerbating his attention and concentration difficulties. This disorder appears related to his work conditions under the employ of Borland Software Corporation. 16 He was assessed using Quantitative EEG technology and showed abnormalities when compared to his asymptomatic peers. We are treating predominantly with a course of EEG Biofeedback. 17 AR at 000713. Plaintiff also relies on a psychiatric evaluation of Dr. Michael Meade stating that 18 Plaintiff was temporarily totally disabled on a psychiatric basis. AR at 001155. These diagnoses 19 alone, however, do not necessarily establish eligibility for benefits. See e.g. Jordan, supra; Martin 20 v. Continental Cas. Co., 96 F.Supp.2d 983, 994 (N.D. Cal. 2000); Hoskins v. Bayer Corp. and 21 Business Serv. Long Term Disability Plan, 564 F.Supp.2d 1097, 1107 (N.D. Cal. 2008). 22 Furthermore, Dr. Becker considered both Dr. Padgitt’s and Dr. Meade’s opinions and set 23 forth several reasonable bases to support his conclusion that Plaintiff was not disabled under the 24 Plan. Among other things, Dr. Becker noted that Plaintiff was able to attend to his chronically 25 bedridden child and spent time writing software, playing on his computer, reading, and attending 26 to various household chores. AR at 000943. Dr. Becker also noted that the “[m]ental status 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 14 examination findings showed no significant lability or agitation, speech within normal limits, and 2 no significant abnormalities in thought processing, or reality testing, immediate or remote recall, 3 abstraction, intellect, or insight and judgment.” AR at 000943-44. Dr. Becker’ report stated that 4 “[m]ild decrease in recent recall was noted and difficulties with calculations noted.” AR at 5 000944. Dr. Becker, however, determined that “there was no indication that additional 6 psychological or neuropsychological testing was pursued to further assess cognitive and executive 7 functioning. Furthermore, the GAF score was noted to be 61 with the highest in the past year of 8 81, which did not appear to be supportive of continuous, severe regression in daily functioning.” 9 Id. Dr. Becker also noted that Plaintiff was “able to attend to his own needs, household needs, the 10 needs of a chronically ill family member, and there was no indication that the [Plaintiff] required 11 United States District Court Northern District of California 1 significant personal assistance from others, which would be typically seen in individuals with 12 severely impairing psychiatric conditions.” AR at 000944. Further, from 2003 forward, there was 13 no indication of ongoing, intensive mental health treatment. Id. 14 Dr. Becker’s addendum also sets forth an additional reasonable basis for rejecting 15 Plaintiff’s claim of disability based on a psychiatric condition. Specifically, Dr. Becker stated that 16 the documentation Plaintiff submitted after Dr. Becker’s initial review did not contain any 17 additional psychiatric clinical information, such as additional detailed objective mental health 18 findings, progress notes or psychological testing and ongoing treatment by the psychiatrist. AR at 19 000796. 20 Plaintiff next takes issue with Dr. Sugerman’s report dated July 16, 2013, and contends 21 that the report should be disregarded because Dr. Sugerman “exclude[d] the concept of 22 psychological injury due to a work situation.” AR at 00604. Dr. Sugerman, however, explained 23 his analysis and reasoning on this point as follows: 24 25 26 27 28 Comments by this reviewer about these data exclude the concept of psychological injury due to a work situation. This topic was probably addressed by those who helped the claimant pursue worker’s compensation and is not germane to this report, which addresses whether evidence of impairment due to a psychiatric Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 15 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 illness. For the purposes of this report, stress it not an illness. It is a condition of life. Responses to stress are therefore not considered symptoms of illness unless it can be demonstrated that the claimant’s psychological condition developed into a psychiatric illness. Stress is mentioned repeatedly in this file, referring to the claimant’s work situation, illness in his daughter, and financial difficulties. It is my opinion, after reviewing available data, that symptoms do not support a severe psychiatric condition that would require psychiatric limitations or restrictions. From the outset, the claimant’s condition was viewed as somewhat chronic in nature, reflective of situational factors, and not of such severity that intensive care was required. Objective abnormalities are not reflective of impairment by documenting severe abnormalities. Complaints of cognitive difficulties are complicated by an ongoing diagnosis of attention deficit disorder, a chronic disorder that may alter a mental status exam on an ongoing basis, and often individuals compensate for such abnormalities. Thus, a singular abnormality by Dr. Meade, who tested serial sevens and spelling world [sic] backwards (considered a crude mental status test), is difficult to generalize to the level of imapriment [sic]. Furthermore, linking cognitive states to a psychiatric condition is not a simple equation, since many factors can impact cognition. The file does not argue for a severe psychiatric condition that would support psychiatric limitations by linking symptoms to a decline in global functional difficulties. For exam, Dr. Meade noted on 3/21/03 that the claimant was able to care for his daughter, perform household chores, or work on computer programs, which tends to argue against the presence of significant psychiatric impairment rather than for disability as he concluded. Other mental health notes do not comment on the claimant’s functional abilities and therefore do not support impairment through this method. The file does not include explicit evidence of psychiatric symptoms that are more reliably associated with impairment, such as suicidal or homicidal ideation that requires risk management, extreme psychomotor retardation or agitation, extreme mood lability, morbid preoccupation with worthlessness or guilt, difficulties with reality testing, severe disorganization, severely disturbed speech, impulsivity or poor judgments that require intervention, multiple panic attacks with agoraphobia, dissociative states, or substance abuse that requires medical treatment. 23 AR at 000604-05. Thus, Dr. Sugerman was distinguishing between a psychological injury and a 24 severe psychiatric condition that would require psychiatric limitations or restrictions. Defendant’s 25 reliance on Dr. Sugerman’s opinion was not unreasonable. 26 27 28 Next, Plaintiff contends that the opinion of Plaintiff’s treating physician, Dr. Abarbanel, Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 16 1 establishes Plaintiff’s disability. In a letter dated January 16, 2014, Dr. Abarbanel stated: 2 I have treated Mr. Gordon previously from May 2002 through June 2003. I treated him for the psychiatric condition of Major Depressive Disorder with anxiety; I cannot render an opinion regarding his physical condition at that time except to note that he was in pain and on pain medication. Those medications, I should add, exacerbated the functional limitations caused by his psychological condition. 3 4 5 6 At the time I treated him he was disabled from doing his work at Borland Software Company due to his psychological conditions. He was suffering from severe depression and anxiety due in large part to the way the management at Borland treated him. At that time, he exhibited many of the symptoms of Post-traumatic disorder from their treatment of him; those symptoms did not disappear when he found himself unemployed and unemployable. His psychological condition affected his ability to concentrate, remember important facts, and to deal with others. He would not have been able to concentrate enough to perform any occupation and could not take instruction or criticism from employers. The anxiety generated by performing any job would have been unbearable for him. 7 8 9 10 United States District Court Northern District of California 11 12 13 I have recently seen him on 1-9-14 and 1-16-14. I found at those time that his psychological condition continues to preclude him from work. He has trouble dealing with the stresses of daily life even without the burden of job responsibilities. If he tried to cope with the stresses of a full time job, I believe he would respond with serious depressive and anxiety symptoms. 14 15 16 17 AR at 000576. On April 18, 2014, Dr. Abarbanel opined that Plaintiff was “totally disabled from 18 his job.” AR at 000330. 19 Dr. Sugerman considered Dr. Abarbanel’s letters, and acknowledged that Plaintiff suffered 20 from a psychiatric condition. Dr. Sugerman, however, disagreed with Dr. Abarbanel’s conclusion 21 that the psychiatric condition rendered Plaintiff totally disabled within the meaning of the Plan. A 22 disagreement among two physicians does not render Defendant’s disability determination 23 unreasonable. 24 Plaintiff next takes issue with Defendant’s determination that Plaintiff did not suffer from a 25 disabling degree of pain. Among other things, Plaintiff points to the opinion of Plaintiff’s 26 physician, Dr. David Resneck-Sannes, prepared in 2009, as evidence of disabling pain. In that 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 17 1 opinion, Dr. Resneck-Sannes opined that in February of 2002, Plaintiff suffered from disabling 2 back pain for degenerative disc disease, chronic migraine headaches and failed knee and shoulder 3 surgery. Plaintiff also relies on a letter dated January 22, 2014 in which Dr. Resneck-Sannes 4 stated: 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 During the time of 2002-2004 he was seen 13 times in my office. During that time he had treatment such as shoulder injections and medication renewals. The pain medications prescribed were for his neck, back and joint pains requiring various combinations of antiinflammatory and narcotic preparations. Several of these medications are known to affect cognition and impeded focus. These conditions, and the pain medications he took because of them, made it hard for Mr. Gordon to work. In 2002 Mr. Gordon’s ability to sit still and work at a desk would be limited because of his back problems. Furthermore, his ability to concentrate would have been impeded due to his constant chronic pain and the pain medications he was taking, which are known to affect cognition and focus. In 2002, Mr. Gordon was unable to work a full time sedentary job, especially one that required a lot of focus and concentration. Any other problems Mr. Gordon suffered from would have only exacerbated his disabling condition. 15 AR at 000574. Dr. Resneck-Sannes prepared another letter dated May 15, 2014 in which he stated 16 that he had treated Plaintiff for back pain for over twelve years and that Plaintiff’s back pain was 17 severe enough to prevent him from working. AR at 000399. 18 Dr. Jane St. Clair, however, reviewed Dr. Resneck- Sannes’ records, as well as the records 19 of Plaintiff’s other treating physicians, and reasonably concluded that the medical records did not 20 support functional physical limitations for the continuous time period from April 19, 2002 to the 21 date of her report. While acknowledging that Plaintiff had dealt with many chronic medical 22 conditions throughout the years and had taken various medications, Dr. St. Clair determined that 23 “[t]here is no documentation that severity of his musculoskeletal complaints existed at the time of 24 disability (4/19/02).” AR at 000680. Dr. St. Clair reviewed Plaintiff’s medical records at least 25 twice in search of evidence of treatment for pain management, and noted that Dr. Resnick-Sannes 26 saw Plaintiff on February 5, 2002, and then not again until June 23, 2003. AR at 000656. In an 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 18 1 addendum, Dr. Jane St. Clair concluded: 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 There is no question that Mr. Gordon had musculoskeletal issues that cause chronic pain in multiple areas, starting back many years prior to the workplaces changes in 2002. He had managed them well with minimal medications for years; other than one reference to MS Contin and OxyContin (Resneck Sannes, 1/8/05), most of the medications lists include only propoxyphene. This use of minimal medication is perhaps how he was able to perform well as a senior programmer at Borland for so many years. The changes in the workplace were a source of new stress for him. Decreased coping abilities for increasing stressors can cause the perception increased pain at levels that were previously manageable. This reviewer believes that his attention to his workplace issues and their psychological effects . . . made it more difficult to seek medical attention for the chronic pain issues. While he sought psychological help and medications to deal with his increasing anxiety, depression, low mood, he failed to focus on the physiological symptoms: neck pain, shoulder pain, and low back pain. 12 13 AR at 000389. Thus, Dr. St. Clair repeatedly acknowledged that Plaintiff suffered from chronic 14 pain. What is missing from Plaintiff’s medical records, however, is documentation of pain 15 management treatment to show that the severity of Plaintiff’s pain rendered him disabled within 16 the meaning of the Plan. In the absence of such documentation, it was not unreasonable for 17 Defendant to conclude that Plaintiff was not disabled within the meaning of the Plan. 18 19 20 21 22 23 24 Plaintiff’s multiple criticisms of Dr. St. Clair’s evaluation, which border on unprofessional, are unfounded. Dr. St. Clair clarified her analysis in an addendum dated June 29, 2014: Mr. Gordon had residual physical abilities in spite of the chronic daily pain he experienced. My interpretation of the situation (from review of the documentation) was that he desired to continue to work, was released to work in another department, and when this was not allowed, he was terminated. Mr. Gordon had the capacity to work in a similar position in a less stressful setting, most likely at another company. Without a new job and with no opportunity to work at Borland, his work opportunities were limited, but his ability to work remained physically intact. 25 AR at 000353. There is evidence in the record to show that Plaintiff desired to work and was 26 released to work by both Dr. Koopman and Dr. Zweng; it was not unreasonable for Dr. St. Clair to 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 19 1 infer from these facts that Plaintiff had the capacity to work in a different setting. 2 Plaintiff attempts to discredit each of Defendant’s medical reviewers by highlighting how 3 much money Defendant has paid them. The fact that the medical reviewers are compensated for 4 their services, however, is unremarkable in and of itself. See e.g. Polnicky v. Liberty Life 5 Assurance Company of Boston, 2014 WL 969973 (N.D. Cal. 2014) (denying request for discovery 6 re consulting physician’s compensation); Lavino v. Metro. Life Ins. Co., 779 F.Supp.2d 1095, 7 1104 (C.D. Cal. 2011) (finding evidence that “MLS performed 77 examinations for MetLife 8 between 2009 and September 2010, for which MetLife had paid $118,816.25” not probative of 9 bias); Nolan v. Heald College, 745 F.Supp.2d 916, 923 (N.D. Cal. 2010) (concluding that statistics showing that MetLife paid NMS $236,490 in 2002, $569,795 in 2003, $838,265 in 2004, and 11 United States District Court Northern District of California 10 $1,671,605 in 2005 for independent medical opinions “are not probative of bias”). Absent from 12 the record in this case is any evidence that the reviewing physicians’ compensation was improper, 13 i.e. that they were paid only if they found in Defendant’s favor, were paid for incomplete reviews, 14 or their compensation was excessive by industry standards. Lastly, Plaintiff faults Defendant for relying upon the opinions of medical reviewers who 15 16 never examined Plaintiff. In-person medical examinations, however, are not mandated under 17 ERISA. Rather, a failure to obtain an in-person medical examination “is merely a factor to be 18 considered when determining whether a plan administrator abused its discretion.” Nolan v. Heald 19 College, 745 F.Supp.2d, 916, 923 (N.D. Cal. 2010), citing Metropolitan Life Ins. Co. v. Glenn, 20 554 U.S. 105, 128 S.Ct. 2343, 2352 (2008). A “pure paper review” does not constitute an abuse of 21 discretion. Corby v. Unum Life Ins. Co. of America, 2010 WL 3768040, *5 (N.D. Cal. 2010); see 22 also Bender v. Hartford Life Ins. Co., 2011 WL 3566483, *13 (N.D. Cal. 2011). Moreover, it is 23 questionable whether an in-person exam of Plaintiff would have been helpful because there was 24 more than a seven year lapse between the claimed date of disability and the date the claim was 25 filed. 26 // 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 20 V. CONCLUSION 1 2 The reports by Defendant’s examiners demonstrate a thorough consideration of Plaintiff’s 3 medical records and a rational basis for concluding that Plaintiff was not disabled within the 4 meaning of the Plan. Plaintiff has not carried his burden to show that Defendant’s denial of 5 benefits was illogical, implausible or unsupported by inferences from the record. Accordingly, 6 Defendant’s motion for summary judgment is GRANTED, and Plaintiff’s motion for summary 7 judgment is DENIED. 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: September 7, 2017 ______________________________________ EDWARD J. DAVILA United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 5:10-cv-05399-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 21

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