Le v. Hartford Life and Accident Insurance Company

Filing 52

ORDER GRANTING IN PART Plaintiff's Motion for Judgment, DENYING Defendant's Motion for Judgment, and DENYING Plaintiff's Motion to Strike. Signed by Judge P. Casey Pitts on 3/27/2024. Re: 31 , 34 and 35 .(nmc, COURT USER) (Filed on 3/27/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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E.L.,

Case No. 22-cv-00050-PCP
Plaintiff,

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United States District Court
Northern District of California

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v.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.

ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR
JUDGMENT, DENYING
DEFENDANT’S MOTION FOR
JUDGMENT, & DENYING
PLAINTIFF'S MOTION TO STRIKE
Re: Dkt. Nos. 31, 34, 35

Plaintiff E.L. brings this action against Hartford Life and Accident Insurance Company

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(Hartford) pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

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§§ 1132(a)(1) and (3). E.L. challenges Hartford’s denial of “own occupation” Long Term

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Disability (LTD) benefits under a Hartford group long term disability plan. Before the Court are

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cross-motions for judgment under Federal Rule of Civil Procedure 52. Dkt. Nos. 31, 34. Before

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the Court is also E.L.’s motion to strike a declaration submitted by Hartford in support of its

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motion. Dkt. No. 35. For the following reasons, the Court grants E.L.’s motion for judgment in

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part, denies Hartford’s motion for judgment, and denies E.L.’s motion to strike.

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LEGAL STANDARD

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ERISA provides claimants with a federal cause of action to recover benefits due under an

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ERISA plan. See 29 U.S.C. § 1132(a)(1)(B). In resolving ERISA claims on cross motions for

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judgment under Federal Rule of Civil Procedure 52, “the Court conducts what is essentially a bench

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trial on the record, evaluating the persuasiveness of conflicting testimony and deciding which is

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more likely true.” McCulloch v. Hartford Life & Accident Ins. Co., No. 19-CV-07716-SI, 2020 WL

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7711257, at *7 (N.D. Cal. Dec. 29, 2020) (citing Kearney v. Standard Ins. Co., 175 F.3d 1084,

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United States District Court
Northern District of California

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1094–95 (9th Cir. 1999)). “In an action tried on the facts without a jury or with an advisory jury, the

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court must find the facts specially and state its conclusions of law separately.” Fed. R. Civ. P. 52(a).

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FINDINGS OF FACT1
E.L.’s Employment History

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A.

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Plaintiff E.L. is a resident of Campbell, California. Beginning in 2016, she was employed

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by Boston Scientific Corporation as a Capital Equipment Manufacturing Technician I, a “light”

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occupation. AR 18–19, 353, 894–95, 1546. In that role, E.L. was required to “perform a variety of

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routine tasks to ensure production quality standards are met” including, among other duties,

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performing “the setup of equipment, fixtures, components, cables, etc. for test,” “some mechanical

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assemblies,” and “hand setups for AC and digital tests.” Id. at 894–95. E.L.’s last day of work was

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February 16, 2020. Id. at 340.

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B.

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Hartford is an insurance plan provider for Boston Scientific Corporation. Hartford issues

The Plan

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long term disability (LTD) benefits under the Group Long Term Disability Plan for Boston

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Scientific Corporation employees. The Policy Number is GLT-803815. AR 1650. Hartford both

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issues the Plan and determines whether a claimant is disabled under the terms of the Plan. See id.

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at 1650, 1659–67.

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The Plan defines “Disability” as a condition resulting from accidental bodily injury,

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sickness, mental illness, substance abuse, or pregnancy that prevents a claimant from “performing

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one or more of the “Essential Duties” of “Your Occupation during the Elimination Period,” and

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“Your Occupation, for the 24 months following the Elimination Period, and as a result of Your

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Current Monthly Earnings are less than 80% of Your Indexed Pre-disability Earnings.” Id. at

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1664. After that 24-month period, the claimant must be unable to perform the “Essential Duties”

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of “Any Occupation” to be considered disabled. Id.
The Plan defines “Essential Duty” as a duty that is (1) “substantial, not incidental,” (2)

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To the extent that any findings of fact are included in the Conclusions of Law section, they shall
be deemed findings of fact, and to the extent that any conclusions of law are included in the
Findings of Fact section, they shall be deemed Conclusions of Law.
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“fundamental or inherent to the occupation; and (3) “cannot be reasonably omitted or changed.”

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Id. The Plan explicitly states that a claimant’s “ability to work the number of hours” in their

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“regularly scheduled workweek is an Essential Duty.” Id.

United States District Court
Northern District of California

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The Plan defines “Your Occupation” as “Your Occupation as it is recognized in the general

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workplace.” Id. at 1667. That definition “does not mean the specific job” the claimant is

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“performing for a specific employer or at a specific location.” Id.

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The Plan defines “Elimination Period” as “the longer of the number of consecutive days at

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the beginning of any one period of Disability which must elapse before benefits are payable or the

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expiration of any Employer sponsored short term disability benefits or salary continuation

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program, excluding benefits required by state law.” Id. at 1664. The Plan provides for a 180-day

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Elimination Period. Id. at 1652.

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The Plan defines “Mental Illness” as “a mental disorder as listed in the current version of

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the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric

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Association.” Id. at 1665. Under the Plan, a “Mental Illness may be caused by biological factors or

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result in physical symptoms or manifestations.” Id. Excluded from the definition of mental illness

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under the Policy are the following six disorders in the Diagnostic and Statistical Manual: (1)

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“Mental Retardation;” (2) “Pervasive Developmental Disorders;” (3) “Motor Skills Disorder;” (4)

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“Substance-Related Disorders;” (5) “Delirium, Dementia, and Amnesic and Other Cognitive

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Disorders;” and (6) “Narcolepsy and Sleep Disorders related to a General Medical Condition.” Id.

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The Plan generally requires claimants to provide “written notice of a claim within 30 days

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after Disability or loss occurs.” Id. at 1659. “[W]ithin 15 days of receiving a Notice of Claim,”

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Hartford is required to send the claimant forms to provide “Proof of Loss.” Id. If Hartford fails to

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do so within that time, claimants “may submit any other written proof which fully describes the

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nature and extent” of the claim. Id. “Proof of Loss” may include but is not limited to the date the

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disability began; the cause of disability; the prognosis; earning statements; evidence of regular

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care by a physician; “any and all medication information;” the names and addresses of relevant

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medical providers, facilities, and pharmacies; signed authorizations for release of information;

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proof of application for other income benefits; and disclosure of “all information and
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documentation required by” Hartford. Id. at 1659–60.
The Plan entitles Hartford to “Additional Proof of Loss,” which includes the right to

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require the claimant to “meet and interview with …[its] representative;” and “be examined by a

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Physician, vocational expert, functional expert, or other medical or vocational professional” of its

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choice. Id. at 1660. Hartford “may deny, suspend or terminate” benefits if the claimant refuses to

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submit to examination or be interviewed. Id.
The Plan also includes, in relevant part, the following provision for California claimants

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only:
We, and not Your Employer or plan administrator, have the
responsibility to fairly, thoroughly, objectively and timely investigate,
evaluate and determine Your eligibility or Your beneficiaries for
benefits for any claim You or Your beneficiaries make on The Policy.
We will:

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United States District Court
Northern District of California

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1) obtain with Your cooperation and authorization if required by law,
only such information that is necessary to evaluate Your claim and
decide whether to accept or deny Your claim for benefits. We may
obtain this information from Your Notice of Claim, submitted proofs
of loss, statements, or other materials provided by You or others on
Your behalf; or, at Our expense We may obtain necessary information,
or have You physically examined when and as often as We may
reasonably require while the claim is pending. In addition, and at Your
option and at Your expense, You may provide Us and We will consider
any other information, including but not limited to, reports from a
Physician or other expert of Your choice. You should provide Us with
all information that You want Us to consider regarding Your claim;
2) as part of Our routine operations, We will apply the terms of The
Policy for making decisions, including decisions on eligibility, receipt
of benefits and claims, or explaining policies, procedures and
processes; … [and] 4) if We deny Your claim, We will explain in
writing to You or Your beneficiaries the basis for an adverse
determination in accordance with The Policy as described in the
provision entitled Claim Denial.

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Id. at 1639–40.
E.L.’s Medical History2

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C.

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Health records from early 2020 show that E.L. was at that time diagnosed with

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“Adjustment Disorder w Mixed Anxiety and Depressed Mood,” AR 43, 44, 57, as well as “Major

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The medical history described herein is taken from the Administrative Record that Hartford
attached as Exhibit A to the Declaration of Carol Dekshenieks. See Dkt. No. 34-2. Because
Hartford reviewed and relied upon this record in making its determination, see Dkt. No. 34-1 ¶¶ 6–
7, its contents are properly considered as part of this Court’s de novo review of that determination.
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United States District Court
Northern District of California

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Depressive Disorder, Recurrent Episode, Moderate W Psychotic Features” and ‘Generalized

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Anxiety Disorder,” id. at 50, 51, 53, 57 (repeating diagnoses). Her psychiatric symptoms included

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severe depression, severe anxiety, difficulty focusing, irrational fears, feeling “sleepy,” anhedonia,

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low energy, paranoia, and dysphoria. Id. at 39, 41, 47, 51, 57. In January 2020, she engaged in

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intensive outpatient (IOP) treatment that included group psychotherapy and medication

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management. See id. at 50–100. She was prescribed psychiatric medications including Abilify and

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Cymbalta (duloxetine) that had side effects of “nausea, dizziness, and weakness,” sleepiness, and

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headaches. Id. at 43–44, 51, 57, 79, 86. Dr. Srimathi Venkataraman placed E.L. “off work from

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2/11/2020 through 2/16/2020.” Id. at 162. In that work status report, Dr. Venkataraman restricted

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E.L. to working “not more than 4 hours a day for 5 days a week for a maximum of 20 hrs a week,”

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between February 17, 2020 and March 9, 2020, estimating that E.L. would be able to return to

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work at full capacity on March 10, 2020. Id. Dr. Venkataraman later changed her prognosis and in

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a new work status report placed E.L. on “modified activity at work and at home from 3/10/2020

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through 3/24/2020” and estimated that she would be “able to return to work at full capacity on

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3/25/2020.” Id. at 161.

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Dr. Brian Poeu Lee, a neurologist with Kaiser Permanente, evaluated E.L. on March 17,

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2020 “for a neurologic opinion regarding falling.” Id. at 108, 113. Dr. Lee diagnosed E.L. with

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“cervical disc herniation w myelopathy M50.00.” Id. at 113, 116. Dr. Lee reported that E.L. was

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“experiencing myelopathic symptoms as a result of C5/6 disc compression upon the cord” that is

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“position-dependent.” Id. at 114. He explained that “[f]lexion, extension, or rotation will bring

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about loss of proprioception and clinical truncal ataxia. The disc visible on C-spine MRI can exert

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pressure on the cord in these non-neutral positions and cause symptoms during the time that the

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position is held. That this occurs in both sitting and standing positions is also consistent with a

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cervical cord localization, rather than a thoracic or peripheral localization.” Id. at 114. Dr. Lee

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consequently made a surgical referral. Id. at 115. Dr. Lee also documented and “confirmed the

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presence of” the following clinical diagnoses:

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PPD POSITIVE
ALLERGIC RHINITIS
MAJOR DEPRESSIVE DISORDER, RECURRENT EPISODE
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Id. Dr. Lee signed a work status report and placed E.L. “off work from 3/17/2020 through

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6/17/2020.” Id. at 158, 163. On May 12, 2020, Dr. Lee made a referral to Shalini Goyal, P.T., a

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physical therapist with Kaiser Permanente, for physical therapy based on a “thoracic sprain/strain”

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diagnosis. Id. at 119. On June 16, 2020, Dr. Lee signed another work status report recommending

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United States District Court
Northern District of California

GENERALIZED ANXIETY DISORDER
SLEEP APNEA
DM 2
DM 2 W HYPERLIPIDEMIA
FEMALE GENITAL ORGAN PROLAPSE
PITUITARY MACROADENOMA
HEADACHE
DEVIATED NASAL SEPTUM
SJORGENS SYNDROME
ACROMEGALY

E.L. remain off work through June 30, 2020. Id. at 394.

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A physical therapy plan of care was established for E.L. on May 18, 2020, setting out a

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twelve-week treatment protocol that included weekly physical therapy appointments. See id. at

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119–20. “[D]ue to COVID19,” these appointments were conducted virtually and not in person.

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See id. at 121. Her treatment goals were to “turn head without symptoms,” “stand without feeling

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of being unbalanced,” and “be independent with final home exercise program” by the end of the

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twelve weeks. Id. By the third visit, the physical therapist reported that E.L. was still experiencing

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the “same symptoms” and “doesn’t feel balanced when she is standing” despite feeling balanced

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when walking. Id. at 120. “Turning neck” and “raising arms overhead” were aggravating factors.

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Id. On June 29, 2020, the fourth physical therapy visit, E.L. made some improvements and

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“tolerated new progressions well” but “[c]ontinued loss of balance in standing position with

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cervical rotation.” Id. at 123–24.

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In a progress note that same day, Dr. Lee wrote: “[E.L.] and I spoke today regarding her

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continued cervical symptoms and the degree of improvement with physical therapy that is

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ongoing. Continue with physical therapy and remain off work.” Id. at 126. Dr. Lee extended his

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recommendation that E.L. remain off work due to “[u]ncontrolled symptoms” and signed another

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work status report placing her off work from July 1, 2020 through August 31, 2020. Id. at 405.

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In a July 31, 2020 Attending Physician Statement for Hartford, Dr. Lee reported that “all

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activities that include neck flexion, extension, or rotation” impair E.L.’s work functioning. Id. at
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102. He further certified that he had recommended E.L. stop working effective March 17, 2020

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and reported that E.L.’s return to work was “dependent upon surgical or rehab assessment.” Id.

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In a progress note from August 31, 2020, reflecting the eighth physical therapy visit,

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Physical Therapist Goyal reported that E.L. “reports feeling unbalanced with looking up and down

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still” and “only ‘little bit’ unbalanced in standing now.” Id. at 797. At that point, E.L. had met one

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of three treatment goals. She was able to turn her head without symptoms and made progress in

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standing without feeling unbalanced. Id. at 798. E.L.’s shoulder range of motion was within

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normal limits, as well as her cervical range of motion “except cervical rotation limited 50%

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approximately right > left.” Id. at 797.

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Northern District of California

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E.L. spoke to Dr. Lee that same day by phone. Dr. Lee noted that E.L. has experienced

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“[l]ess falling” and that physical therapy is helping but reported that “bending still makes falling

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more likely” and that E.L. needs “to work on balance and posture.” He also noted that E.L. had

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back pain and “hand weakness, particularly left side.” Id. at 790–91. As a result, he opined that

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E.L. “[w]ill need more physical therapy and more time off work.” Id. at 790. Dr. Lee signed a

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work status report recommending she remain off work through November 1, 2020. Id. at 803.

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E.L. had another physical therapy appointment on September 21, 2020. The progress note

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indicated that E.L. was tolerating home exercises well and she showed “[i]mprovement … in

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cervical range of motion.” Id. at 804–06. At that point, E.L. had still only met one treatment goal

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with “[p]rogress made” towards the second of standing without feeling unbalanced. Id. at 806. On

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October 12, 2020, physical therapy progress notes continued to indicate that E.L. demonstrated

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“progress made” on the second goal of standing without feeling unbalanced but had still not met

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that goal. See id. at 814–16.

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On October 27, 2020, Dr. Lee filled out another Attending Physician Statement indicating

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that E.L. was still unable to work and estimating that that E.L. could return to work by November

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2, 2020. Id. at 765. On October 30, 2020, Dr. Lee signed a work status report directing that E.L.

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“is placed off work from 11/2/2020 through 1/4/2021.” Id. at 841.

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On November 2, 2020, E.L. underwent an MRI of her brain with contrast (stealth

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protocol). Id. at 972. The MRI showed “a lobulated expansile sellar/suprasellar enhancing lesion
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measuring about 2.4 cm AP by 2.2 cm transverse by 3.6 cm craniocaudal.” Id. According to Dr.

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Michael Jordan Duh of Kaiser Permanente, the impression was of a “[l]obulated expansile

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sellar/suprasellar enhancing lesion … suspicious for a macroadenoma.” Id.

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That same day, E.L. was seen by Dr. Allen Efron, a neurosurgeon with Kaiser Permanente,

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for a preoperative exam related to her diagnoses of pituitary macroadenoma and acromegaly. Id. at

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843, 850. He observed that E.L. “was diagnosed with a pituitary tumor on MRI in 2016 done for

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tremor evaluation at SCVMC. Hormonal testing revealed elevation of IGF-1. The patient was

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offered surgery but her insurance status changed. She is now a KP member and was referred to Dr.

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Khan of Endocrinology who noted IGF-1 574.” Id. at 850.

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Northern District of California

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Dr. Efron reported that E.L. presented with “pituitary macroadenoma causing acromegaly”

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and noted “classic symptoms of hand and foot enlargement, sleep apnea, carpel tunnel syndrome,

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and dental malocclusion.” Id. at 850–51. At that time, E.L.’s medications included 1,000 mg

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metFORMIN (Glucophage), “HumuLIN N NPH U-100 Insulin 100 unit/mL SubQ Susp,” and 20

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mg DULoxetine (Cymbalta). Id. at 851. The MRI showed a “36mm enhancing mass with

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suprasellar and left cavernous sinus extension, some encasement of left ICA. There is contact with

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the optic chiasm. The mass appears larger than on prior imaging.” Id. at 855. Dr. Efron opined:

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Acromegaly due to 36mm pituitary tumor. The size of the tumor also
poses risks to the optic nerves. I am therefore recommending surgery
to decompress optic nerves and attempt to normalize hormones. Due
to the invasive nature of the tumor, curative resection will be unlikely.
Therefore, adjuvant medical therapy and/or radiotherapy will likely
be needed.
I discussed surgery in detail including rationale, technique, outcomes,
risks, benefits and alternatives. I also discussed risks to the patient
without treatment including, but not limited to, vision loss,
progressive acromegaly, worsening of diabetes and potential heart
disease.

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Id. E.L. consented to “elective admission for stereotaxic transsphenoidal resection of pituitary

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macroadenoma.” Id. at 856.

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On November 3, 2020, E.L. had another virtual physical therapy appointment. Physical

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Therapist Goyal noted that E.L. reported “doing better” and feeling more balanced. Id. at 937–38.

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Physical Therapist Goyal’s assessment confirmed that E.L. “has demonstrated good progress and
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demonstrates more balance/stability with standing.” Id. at 939. The second and third treatment

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goals, however, were still unmet. Id. The recommendation was for E.L. to continue her home

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exercises and pause physical therapy appointments until after her surgery scheduled for November

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23, 2020. Id. at 938–39.

United States District Court
Northern District of California

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On November 23, 2020, E.L. was admitted to the hospital and underwent a craniotomy

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transsphenoidal microscopic tumor excision to remove her tumor. Id. at 899–900. She was

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discharged the next day. Id. at 899. Dr. Allen Efron reported that the “[s]urgery and post-op course

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were uneventful with no evidence of DI or CSF rhinorrhea. By discharge, the patient was

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ambulating independently, tolerating PO intake, exhibiting satisfactory wound healing,

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neurologically intact, and voiding well.” Id. at 900. Dr. Efron placed E.L. off of work from

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November 23, 2020 through January 4, 2021. Id. at 1023.

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On January 4, 2021, six weeks after her surgery, E.L. had a follow-up telephone

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appointment with Dr. Lee. His progress note indicated that E.L. exhibited the following

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symptoms:

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Headache behind the eyes and around the forehead. Photophobia a
component. Focusing can worsen the disequilibrium. No
phonophobia.
Upper and lower extremities seem weaker, particularly when standing
up to walk.
Burning on the hands and feet, most of the time.

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Id. at 994. Later that day, E.L. had a phone call with her physical therapist. The progress note

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indicates that a new physical therapy referral was needed because of the recent surgery. Physical

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Therapist Goyal had sent out two emails requesting new referrals in December and encouraged

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E.L. to follow up. Id. at 945.

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Dr. Lee made a new physical therapy referral on January 11, 2021 with a referring

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diagnosis of “55F with myelopathy.” Id. at 947. A new plan of care was established on January 20,

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2021, and E.L. resumed physical therapy that day. Id. Physical Therapist Goyal’s progress note

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listed three new treatment goals:

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Patient will have painfree lumbar range of motion in 8 weeks.
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United States District Court
Northern District of California

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Patient will walk community distances without lower extremity
muscle fatigue in 12 weeks.
Patient will be independent with final home exercise program in 12
weeks.

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Id. at 947–48. During that first appointment, E.L. reported “feeling continued weakness s/p

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surgery” and “bilateral leg and arm weakness and neck pain. Walks 30 min but states she walks

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very slow because legs get tired.” Id. at 948. Physical Therapist Goyal’s “objective” assessment

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indicated that E.L.’s cervical range of motion and shoulder range of motion were “within normal

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limits.” Id. at 948–49. E.L.’s lumbar range of motion was also “within normal limits but pain with

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flexion and left sidebending.” Id. at 949. E.L. was able to perform “bridging” and maintain a

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single limb balance for approximately 4 seconds bilaterally. Id. E.L. reported weakness “left >

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right” during squats. Id. PT Goyal’s assessment was that E.L. “has increased muscle weakness s/p

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surgery” and the plan was to “progress strengthening and balancing exercises as tolerated.” Id.

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On February 2, 2021, E.L. attended another virtual physical therapy visit and reported that

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she “[c]ontinued feeling of weakness and decreased balance. States the last two weeks were hard

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due to feeling other medical issues that she has been in contact with doctors about.” Id. at 951.

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E.L. reported completing her home exercises two times per day. Id. Physical Therapist Goyal

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reported that E.L. had “decreased cadence, widened base of support,” had pain “with left rotation

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in sitting not in supine” during cervical range of motion, and had right sidebending pain in

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addition to left sidebending pain with lumbar range of motion. Id. at 951–52. E.L. also had knee

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pain with squats. Her shoulder range of motion remained within normal limits. Id. at 952.

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Also on February 2, 2021, E.L. had an appointment with Dr. Yen Hoang Ngo, an

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ophthalmologist with Kaiser Permanente, to evaluate E.L. for post-surgery symptoms. See id. 975

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–79. E.L. reported that “after surgery, both eyes are very light sensitive, eyes feel tired, [w]hen she

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looks to the left or right, … has a headache, feels dizzy and wants to fall” but noted that

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“dizziness” and falling “every time I bend my neck” were symptoms that existed prior to surgery.

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Id. at 976. Dr. Ngo’s assessment revealed “[n]o acute ocular findings to account for symptoms of

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disequilibrium” and indicated that E.L.’s symptoms “are more gazed evoked.” Id. at 978. Dr. Ngo

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“quer[ied] if better MRI imaging to area MLF/midbrain would be worthwhile to further evaluate

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any pathology that would be consistent with sxs,” and planned to “cc note to Neuro10

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ophthalmologist, Dr. Hwang for further review.” Id. Dr. Ngo recommended follow-ups with “Dr.

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Lee for further w/u of disequilibrium” and “with endocrinology, Dr. Ka[h]n.” Id.

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breath. Id. at 1209. Dr. Shailan Shah of Kaiser Permanente interpreted the results. The findings

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showed that E.L.’s results were largely normal with “[m]ild mitral regurgitation,” “[m]ild aortic

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regurgitation,” and “[m]ild left atrial enlargement.” Id. at 1210–12.

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United States District Court
Northern District of California

On February 8, 2021, E.L. underwent an echocardiogram to evaluate causes of shortness of

On February 9, 2021, E.L. had a follow-up neurology appointment with Dr. Lee. Id. at 705.

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Records indicate that Dr. Lee performed a “[d]etailed neurologic examination” to evaluate the

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following symptoms: “[h]ands and feet burning paranesthesias. Perhaps involuntary movement.

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Eyes feel like they want to close, all the time. Looking at the right, her head tends to tilt toward

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that side, with the neck giving way. Same on the left. Eyes more tired with lights. Balance feels

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off. Seems worse than before surgical intervention, she observes.” Id. Dr. Lee’s assessment

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indicated “no additional neurologic disorder at this time” and “no single localization within the

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neuraxis that will produce E.L.’s current constellation of symptoms.” Id. at 706. He reported a

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“discordance between direct and indirect examination. She tilts toward the direction of gaze on

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EOM testing and during FTN testing. None is present on indirect examination. Gait is affected.”

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Id. at 705. He reported “5/5 strength bilaterally in the upper and lower extremities.” Id.

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On March 9, 2021, E.L. had a follow-up appointment with Dr. Lee “reporting persistent

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symptoms” including “weakness in her lower examinations.” Id. at 1101. He conducted another

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detailed neurologic examination that again “shows discordance between direct and indirect

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examination.” Id. Dr. Lee’s note indicated that E.L. continued to demonstrate “5/5 strength

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bilaterally in the upper and lower extremities” and that E.L. was “[a]ble to stand from the chair

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with arms crossed but then sits back down when 80% upright.” Id. He concluded that there was

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“no additional neurologic disorder” and did “not see any localization within the neuraxis that

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would account for E.L.’s constellation of symptoms today.” Id. at 1102. He recommended that she

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“[r]eturn to care of primary physician.” Id.

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On March 11, 2021, E.L. had a 60-minute appointment with Dr. Thomas Nyping Hwang,
an ophthalmologist with Kaiser Permanente, to address her symptoms of dizziness and light
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sensitivity. Id. at 728–33. Dr. Hwang observed that “[h]eadthrust overall negative but frequent

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dramatic neck and eye deviations to all sides with whole body jerking” that “didn’t happen if eyes

3

closed.” Id. at 729. Dr. Hwang made the following observation about the appointment:

4

PT was fine for 30 minutes during history and looking [at] me but
then once I asked her to look right at me she suddenly fell forward out
of her chair or she fell to the left side and then was immediately more
stable after I helped her sit back down. There was no preceding eye
movement. This occurred half a dozen times even when just looking
at my finger. In between exams, the patient sat stably without any
problem and was stable for another 20 minutes during our wrap up
exam[.]

5
6
7
8

Watched her walk down the hall in between testing and no wide based
gait or other issue[.]

9
10

She states that it only happens when she is not doing something else
but she says it happens often. Like when she’s talking to someone it’s
fine. It doesn’t happen when she’s looking at the computer or TV[.]

United States District Court
Northern District of California

11
12

Id. at 730. Dr. Hwang concluded that there was “no clear vestibular or ocular misalignment

13

findings on exam” and that “there is no detectable optic nerve damage and … vision was normal.”

14

Id. at 733. He recommended “updated refraction given her ani[s]ometropia and hyperopia” that

15

“might help her eyes relax.” Id.
On March 17, 2021, Dr. Nishkala Gutta with Kaiser Permanente called E.L. for a “TAV”

16
17

regarding her symptoms of dizziness and to provide a second neurology opinion. Id. at 713–14.

18

Dr. Gutta’s note indicated that she reviewed Dr. Lee’s assessment that “[n]o neurologic diagnosis

19

… explains her symptoms. And inconsistent exam and symptoms.” Id. at 713. Dr. Gutta had

20

discussed with Dr. Lee that the “etiology is unclear” and an “[u]nlikely neurologic issue.” Id. at

21

715.

22

On March 18, 2021, E.L. underwent an MRI of her spinal canal lumbar with contrast at

23

Sunnyvale Imaging Center. Id. at 1126–28. The MRI report documented the following

24

impressions:

25
26
27
28

1. L2-L3 moderate-severe degenerative disc disease, right lateral
annulus bulging and left posterolateral profusion measuring over 4
mm. There is moderate-severe left foraminal stenosis. There is slight
retrolisthesis of L2.
2. L3-L4 moderate-severe degenerative disc disease, diffuse posterior
and lateral annulus bulging measuring 4-5 mm laterally, left side
12

greater than right. There is mild to moderate right and moderates left
foraminal stenosis. There is 2-3 mm retrolisthesis of L3.

1
2

3. L5-S1 left lateral annulus bulging and right posterolateral profusion
measuring at least 3 mm with severe compression of the S1 nerve in
the lateral recess. There is moderate right and mild left foraminal
stenosis.

3
4

4. L4-L5 disc desiccation, diffuse posterior lateral annulus bulging.
The right lateral disc bulge measures over 5 mm combined with
endplate bone spurring and arthropathy causing moderate foraminal
stenosis. The disc also compresses the existing L5 nerve.

5
6
7

5. L1-L2 left lateral annulus bulging and right posterolateral
protrusion measuring at least 4 mm. No foraminal stenosis.

8

6. Lower thoracic disc desiccation and annulus bulging and
arthropathy right side greater than left. There is moderate to severe
right T12-L1 and T11-T12 foraminal stenosis. T10-T11 foramina
only partially visible with at least moderate foraminal stenosis.

9
10

United States District Court
Northern District of California

11

7. Moderate thoracolumbar levescoliosis with the apex of curvature
to the left at T11-T12.

12
Id. at 1128.
13

In a progress note dated March 22, 2021, Dr. Gutta wrote that a “[n]euro consult last week

14
indicated that there is no neurologic focus for her symptoms. similar opinion [from]
15
ophthalmology. when I brought the conversation up, pt got up from her chair, ran across the room
16
and hit her head on the floor. was not arousable after that for 2-3 minutes. Patient transferred to
17
ED for further evaluation for head trauma. Cause for her dizziness is currently unclear. Will get a
18
19
20
21

second neurology opinion.” Id. at 1100. Dr. Steven Thomas Foy, emergency department doctor
with Kaiser Permanente, included a note from an econsult that day by Dr. Gutta in E.L.’s records.
It explained: “neuro consult last week indicated that there is no neurologic focus for her
symptoms. Similar opinion … [from] ophthalmology. [W]hen I brought the conversation up, pt

22
got up from her chair, ran across the room and hit her head on the floor [and] was not arousable
23
after that for 2-3 minutes. ?conversion disorder vs. malingering. Please evaluate for dizziness and
24
25
26
27

head trauma.” Id. at 721.
Dr. Foy’s initial impressions were: “[c]onsidered intracranial injury, intracranial tumor,
postoperative infection, electrolyte abnormalities, dehydration, conversion disorder/malingering.”
Id. at 725. Dr. Foy observed that E.L. did “have a minor head injury today, but she did not actually

28
13

United States District Court
Northern District of California

1

lose consciousness, and does not have any high risk features by the Canadian CT head rule.” Id. at

2

727. He recommended “a CT scan of the brain would be indicated” and “discussed this with the

3

patient.” Id. He reported that E.L. “refuses to have a CT scan done because she is worried about

4

the radiation risk.” Id. Dr. Foy reported that he explained the low risk involved in a CT scan and

5

further documented that “I have also discussed with her that it is impossible for me to rule out a

6

life-threatening intracranial pathology such as intracranial bleeding, tumor/mass, or other space

7

occupying lesions.” Id. Dr. Foy reported that E.L. still refused to undergo a CT scan that day. Id.

8

Dr. Foy did “not feel that an MRI of the brain would be the appropriate study as it is not a

9

sensitive CT scan for the diagnosis of her acute intracranial hemorrhage, which would be my chief

10

concern today.” Id. He wrote, “since her symptoms seem to have been chronic and there is no

11

other emergency department evaluation indicated,” E.L. was “discharged home per her desire

12

AGAINST MEDICAL ADVICE.” Id. (emphasis in original).

13

On March 23, 2021, E.L. underwent an MRI at Sunnyvale Imaging Center. See id. at

14

1129–31. The findings indicated that while her “forearm magnum and skull base appear within

15

normal limits,” her “sella is enlarged and very distorted.” Id. at 1129. Among other findings, the

16

reviewing doctor observed: “[t]here is no visible pituitary tissue or definitive mass. There appear

17

to be changes related to paranasal sinus surgery. There is a circumscribed intermediate T2 mass in

18

the left lobe of the thyroid measuring approximately 2 x 4.3 cm. There are smaller lesions in the

19

right lobe.” Id. The following impressions were noted:

20
21
22
23
24
25
26
27
28

1. C5-C6 degenerative disc disease, grade 1 spondylolisthesis, right
paracentral 4 mm disc osteophyte complex contacting the cord
without displacement or compression. There is moderate-severe right
foraminal stenosis.”
2. Arthropathy at all remaining cervical and thoracic levels with
foraminal narrowing, mild at C3-4 and C4-5, moderate right C6-C7
and bilateral C7-T1.
3. Loss of curvature and straightening of the spine.
4. Postoperative changes in the sella as described. Evaluation of the
sella is limited.
5. Bilateral thyroid lesions. The largest mass is in the left lobe
measuring over 4 cm. Ultrasound evaluation is recommended.
Id. at 1130–31.
On March 31, 2021, E.L. had a neurology consultation with Dr. Edwin Simeon Tasch of
14

1

Kaiser Permanente after Dr. Lee requested that he provide a second opinion. See id. at 707–10. He

2

reported that E.L.’s “surgery was reported to be uneventful with a small amount of residual tumor

3

left behind. Her growth factor hormones are still somewhat elevated and her endocrinologist, Dr.

4

Kahn, is working on this.” Id. at 707. He described that during the visit:

5

8

As we talked, I will spontaneously see her close her eyes, she is able
to open them when I asked her to. There are occasional sudden jerks
of her body in her head, and she will lean backwards. She then
corrects herself. When I shine the light in her to do a funduscopic
exam initially she will have such a jerk, momentarily, but then I can
continue my exam. A similar phenomen[on] happened when I
checked her Babinski reflexes.

9

Id. at 708. Dr. Tasch opined that “there is leukocytosis … which appeared to be nonphysiologic in

6

United States District Court
Northern District of California

7

10

my opinion. Apart from these phenomen[a] her neurologic exam is normal. My opinion she has

11

subclinical functional neurologic disorder/conversion disorder which may be a combination of

12

subjective symptoms from her hormonal fluctuations in combination with psychological stress.”

13

Id. at 709.

14

On April 14, 2021, E.L. had an appointment with endocrinologist Dr. Mehreen Malik

15

Kahn of Kaiser Permanente. See id. at 1206–08. Dr. Kahn reported that E.L. presented with

16

“weight gain (17 lbs),” “thicker” muscles, “burning in hands and feet,” “long standing dry mouth

17

and nocturia,” and “cardiomegaly suspected,” and “IGF-1 rising.” Id. at 1206. Dr. Kahn

18

accordingly “favor[ed] starting medical treatment now.” Id. Dr. Kahn diagnosed E.L. with

19

“[a]cromegaly with residual disease after debulking,” id. at 1207, for which Dr. Kahn prescribed

20

E.L. 20mg of octreotide, id. at 1208.

21

On April 19, 2021, E.L. had another physical therapy appointment. See id. at 1228–30. The

22

note indicates that E.L. was “tolerating home exercise program well” but her progress was

23

“ongoing” as she had not yet met the treatment goals. Id. at 1229–30.

24

On April 26, 2021, E.L. had a telephone Therapeutic Supportive Services (TSS)

25

appointment with Janet Ly, MFT of Kaiser Permanente, who reported that she would be taking

26

over E.L.’s case management. See id. at 1222–25. Per Ms. Ly’s notes, E.L. “reports ongoing

27

dizziness, eye keeps closing, head shaking. She reports that will be checking with her

28

ophthalmologist, ENT and endocrinology to hopefully try and resolver her sx. She denies that
15

United States District Court
Northern District of California

1

these physical sx could possibly be related to worrying or stress. She reports that the physical sx

2

occurred after surgery and denies that stress/anxiety are a concern for her at the moment. Reports

3

less energy due to physical sx, sleep (6 hrs/daily) and app (3 meals/day) are the same.” Id. at

4

1222–23. The note listed “Major Depressive Disorder, Recurrent Episode Full Remission (primary

5

encounter diagnosis)” and “Generalized Anxiety Disorder” as diagnoses. Id. at 1223 (emphasis

6

omitted). Ms. Ly reported E.L’s updated treatment goals as “TSS & med management.” Id.

7

On April 29, 2021, E.L. had a follow-up appointment with Dr. Gutta for ongoing

8

complaints of “persistent dizziness and visual changes” and “falling several times daily.” Id. at

9

716. Per the note, E.L. was able to drive to the appointment and requested a VOT extension. Id.

10

Like other providers, Dr. Gutta reported that E.L. “occasionally blinks suddenly and falls/leans to

11

either side. Occasional [j]erking followed by falls.” Id. at 717. Dr. Gutta recommended that E.L.

12

“follow up with ENT/endocrine.” Id. at 719. Dr. Gutta opined “Possible conversion disorder.

13

Advised to follow up with psych.” Id. Dr. Gutta was “unable to provide an extension of her VOT

14

at this time due to absence of a viable neurologic diagnosis” and discussed her impressions with

15

Dr. Venkataraman “who has graciously agreed to evaluate” E.L. Id.

16

On April 30, 2021, E.L. had an appointment with Dr. Joseph Chang of Kaiser Permanente

17

for a “Head and Neck Surgery” follow-up. Id. at 1199. Dr. Chang had last seen E.L. on February

18

10, 2021 for “[a]cute sinusitis resolved after antibiotics” and noted “left epiglottic mucocele.” Id.

19

Dr. Chang opined that he “[w]ould consider vestibular migraine as a possible etiology although

20

her history of transsphenoidal surgery and pituitary adenoma may [be] contributing to some of her

21

migrainous symptoms including retroorbital pain, photophobia, and difficulty focusing her eyes.”

22

Id. at 1200. He recommended that E.L. “continue Flonase and nasal saline irrigations” and “defer

23

to PCP and Neurology for consideration of migraine medications.” Id.

24

On May 6, 2021, E.L. had a psychiatry follow-up visit with Dr. Venkataraman. See id. at

25

681–86. Dr. Venkataraman noted that “Patient has been worked up by different [specialties]

26

(ophthalmologist, neurologist and ENT) and no organic causes found” for her symptoms of

27

“feeling dizzy, unstable and weak (legs and arms).” Id. at 681. E.L. “was referred to psychiatry to

28

rule out psychological causes for the somatic symptoms.” Id. The note indicated that E.L. reported
16

United States District Court
Northern District of California

1

“[f]eeling stressed because of her physical symptoms” and “clearly indicates that her stress and

2

sadness are mainly related to her physical symptoms.” Id. Dr. Venkataraman diagnosed E.L. with

3

“major depressive disorder current mild,” id. at 686, and opined that “Eileen Le is a 55 Y female

4

with stress and depression due to feeling physically unwell (increased somatic symptoms since

5

Nov).” Id. Dr. Venkataraman increased Cymbalta to 40 mg at night and increased gabapentin “300

6

mg to qid (was taking it tid).” Id. “Patient was provided 2 weeks time off,” id., from May 6, 2021

7

through May 23, 2021, id. at 687.

8

On May 12, 2021, E.L. had a follow-up neurology appointment with Dr. Tasch. Id. at 711.

9

Dr. Tasch noted that E.L. “exhibited balance difficulties and had jerks [that] … continue to appear

10

to be functional in nature.” Id. at 712. Dr. Tasch “continue[d] to be of the opinion that these

11

symptoms represent a form of conversion disorder” and “messaged her psychiatrist.” Id.

12

D.

LTD Claim History

13

E.L. applied for and received short term disability (STD) benefits from Hartford from

14

February 17, 2020 through August 16, 2020. See AR 277. On October 8, 2020, E.L. submitted an

15

application for LTD benefits. Id. at 754–58. On the form, E.L. reported that her first symptom

16

occurred on December 2, 2019 when she fell down at work. Id. at 754. She reported that she “fell

17

down at the meeting with my manager and supervisor” and indicated that her “back and neck” are

18

the reasons for her inability to work. Id. at 755. She answered “yes” to the question whether her

19

condition is “related to activities or your workplace.” Id. She wrote “12/02/2019” as the “[l]ast day

20

worked before the disability” and “12/03/2019” next to “[d]ate you were first unable to work.” Id.

21

She also checked “yes” to the following question: “[i]f you have not returned to work, do you

22

expect to?” She noted that she expected to return to work part time on “11/02/2020.” Id.

23

In a letter to E.L. dated October 13, 2020, Hartford Senior Ability Analyst Laurie Lee

24

acknowledged receipt of E.L.’s application for LTD benefits. See id. at 1277–78. The letter stated

25

that Hartford needs “[o]ffice visit notes, testing results from ALL treating providers (beyond

26

6/16/2020 to present)” and that Hartford is “requesting this directly from Kaiser so there’s nothing

27

you have to do right now.” Id. at 1277. The letter proceeded to say that it was E.L.’s

28

“responsibility to confirm the documentation is sent to us by 10/27/2020.” Id. The file contains a
17

1

letter dated October 14, 2020 from Laurie Lee addressed to “Kaiser Permanente” and a letter dated

2

October 16, 2020 addressed to “Santa Clara Medical Center – Kaiser Permanente” requesting

3

office visit notes, testing, and rehab notes “beyond 6/16/20 to current.” Id. at 1283, 1286–87.

4
5

all the information requested. See id. at 1284–86. The letter stated that Hartford needed “[o]ffice

6

visit notes, testing results from ALL treating providers (beyond 6/16/2020 to present) and an

7

“[u]pdated work status note” “by 11/11/2020.” Id. at 1284 (emphasis in original). The letter

8

warned: “Please make sure we receive the information by 11/11/2020 to avoid having your

9

claim closed. If your claim is closed due to missing information, you may be able to reopen it

10

United States District Court
Northern District of California

In a letter to E.L. dated October 28, 2020, Laurie Lee stated that Hartford had not received

by sending us the information we need to finish our review.” Id. (emphasis in original).

11

The file contains a letter dated November 2, 2020 from Laurie Lee addressed to Dr. Brian

12

Poeu Lee again requesting records from 6/16/2020 to the present and asking that he submit those

13

records within “7 business days.” Id. at 1289–90.

14

E.L. scheduled an appointment with Hartford’s Laurie Lee regarding her claim for 9:30

15

AM – Eastern on November 4, 2020, which Laurie Lee confirmed by email. See id. at 1291–92.

16

On November 4, 2020, Laurie Lee spoke with E.L. on the phone. The note from that call indicate

17

that E.L. reported having neck and back pain and struggling with balance. Id. Specifically, the note

18

states that E.L. “[c]ontinues with unbalance when she turn[s] her head left/right,” reports that “her

19

hand gets numb (both hands),” and “almost falling.” Id. E.L. shared that she does “not use a cane,

20

but she cannot stand for a long time.” Id. Therefore, she “use[s] furniture to get around” and “must

21

lean [her] body on something.” Id. E.L. did share that she was able to drive. Id. According to the

22

note, E.L. also reported that she underwent an MRI and X-Ray. Id. While her providers are

23

“talking about surgery,” the note states that E.L. “want[s] to try therapy to see if she improves.” Id.

24

Laurie Lee advised E.L. that Hartford needed records from Kaiser as they had not received a

25

response. Id.

26

That day, Laurie Lee sent E.L. an email requesting office notes and testing from “ALL

27

treating providers (beyond 6/16/2020 to 10/27/2020),” the “[l]ast 3 physical [t]herapy notes,” and

28

an “[u]pdated work status note.” Id. at 1292. Laurie Lee acknowledged receipt of a “Kaiser
18

1

Attending Physician Statement dated 10/27/2020,” but noted that “it does not indicate how long

2

the doctor is keeping you out of work or the treatment plan.” Id.
On November 10, 2020, Laurie Lee made a clinical consult referral in E.L.’s file stating:

3
4

54 year old female employed as a CAPITAL EQUIPMENT
TECHNICIAN I, sedentary job demand. EE job consist of desk work.
EE originally diagnosed with MAJOR DEPRESSIVE DISORDER,
SINGLE EPISODE, UNSPECIFIED. Based on the medical
documents received, the claim was approved thru 3/9/2020. The
condition was changed from behavioral to medical CERVICAL DISC
DISORDER WITH MYELOPATHY, UNSPECIFIED CERVICAL
REGION ee doing PT (Kaiser).3

5
6
7
8
9

Id. at 1478.
On November 11, 2020, Hartford Medical Case Manager Amy Bergner conducted a

10

United States District Court
Northern District of California

11

clinical consult review of E.L.’s claim. She concluded:

12

The referral is non-actionable. Dr. Lee has indicated no work capacity
until 11/1/20 but there are no evaluation notes from him with
measurable examination findings after 3/17/20. EE has been attending
PT virtually; the most recent note is dated 7/13/20 and contains scant
measurable findings. EE reported feeling a bit better. She was able to
perform standing punches without any loss of balance. She did require
upper extremity use for standing cervical rotation AROM to prevent
loss of balance. This would not preclude performance of a sedentary
PDL job. The information is also 4 months old. The file is being
returned to AS for further development. Medical records with
objective examination findings after 7/13/20 are needed, surgical
evaluation if done. PM&R records and updated records from Dr. Lee
are needed to determine response to treatment and ongoing treatment
plan, ERTW.

13
14
15
16
17
18
19
20

Id.
On November 12, 2020, Hartford denied E.L.’s LTD claim by letter. See id. at 1293–96.

21
22

The letter explained:

23

Your Long-Term Disability (LTD) claim wasn’t approved because
the information we received isn’t enough to show that you aren't able
to work.

24
25

On November 06, 2020, you submitted the physical therapy notes
from Kaiser through July 13, 2020. Dr. Lee submitted a work status
note dated October 27, 2020, requesting time off until November 1,
2020.

26
27
28

3

The records regularly refer to E.L. as “EE.”
19

1
2
3
4
5

The above information was reviewed and determined to be
insufficient. There is no current evaluation notes with the measurable
examination findings beyond March 17, 2020. Records show that you
have been attending physical therapy virtually. Records show that you
required upper extremity use (to prevent loss of balance) when
performing the standing rotation test.
Based on the above we were unable to determine if you can/cannot
perform your own occupation.

6
7
8

Not Disabled Own Occupation:

9

On an ongoing basis during the own occupation period, the Analyst
should compare the:
• Policy definition of Disability;
• Essential Duties of the occupation; and
• Medical and vocational information

10
11

United States District Court
Northern District of California

Id. at 1294. In so concluding, Hartford stated that it relied on the following guidelines:

12
13

The Analyst should recommend a claim be denied or terminated when
the analysis of all the medical and vocational information indicates
that the claimant no longer meets the policy definition of Disability.

14

Proof of Loss:

15

The Analyst should recommend a claim be terminated or denied
when:

16
17
18
19

•
•
•
•

Information was requested from a physician or claimant;
Ongoing Disability cannot be determined without the
requested information;
The claimant is aware of what information is needed; and
The information has not been received after at least two (2)
follow ups

20

Id. at 1294–95. The denial letter invited E.L. to submit additional information that might alter

21

Hartford’s determination. Id. at 1294. It provided further:

22
23
24
25

Specifically, you should send office visit notes, testing results and
physical therapy notes beyond July 13, 2020 to present. Would
recommend sending notes from ALL current treating providers
(Example: Orthopedic, Pain Management, Primary Care) that
information is necessary to understand your full course of treatment;
and what your current functional capacity level is to date. If you
would like this information considered, we must receive it as soon as
possible.

26
27
28

Id. The letter also notified E.L. of her right to appeal. Id. at 1295.
On November 23, 2020, E.L. sent an email to Hartford submitting clinical records from Dr.
20

1

Lee and Physical Therapist Goyal from July through October in support of her application. See id.

2

at 789.
On November 24, 2020, Laurie Lee made another clinical consult referral describing E.L.

3
4

as a “54 year old female employed as a capital equipment technician I, sedentary job demand” and

5

stated that “EE job consist of desk work.” Id. at 1477 (emphasis removed). She further wrote that

6

“EE [was] originally diagnosed with Major Depressive Disorder, Single Episode, Unspecified.

7

Based on the medical documents received, the claim was approved thru 3/9/20. The condition was

8

changed from behavioral to medical cervical disc disorder with myelopathy, unspecified cervical

9

region.” Id. (emphasis removed).
The next day, Medical Case Manager Amy Bergner again reviewed E.L.’s file. Id. at 1477.

10

United States District Court
Northern District of California

11

She closed the claim, concluding:

12

Dr. Lee has indicated no work capacity until 1/4/21 but there are no
evaluation notes from him with measurable examination findings
after 3/17/20. EE has been attending PT virtually once every 3 weeks;
the most recent note is dated 10/12/20 and contains scant measurable
findings. EE reported feeling a bit better. She was able to perform
standing punches without any loss of balance. She is feeling more
balanced and had no loss of balance with standing cervical ROM. She
was demonstrating good progress and felt relief with diaphragmatic
breathing for the neck and back symptoms. She was to practice arm
swing with walking. Dr. Lee has not provided restrictions and
limitations. The claim is closed for proof of loss. MCM and AA
discussed that the information submitted does not change the
determination of lack of medical proof of impairment. File is being
returned to the AA for further handling.

13
14
15
16
17
18
19
20
21

Id.
On December 8, 2020, E.L. called Laurie Lee to follow up on an appointment scheduled

22

for that day. Id. at 1476. Per the case note, Laurie Lee informed E.L. that the additional records do

23

not support her claim. Laurie Lee wrote:

24
25
26
27
28

AA confirmed with ee that her visit[s] with the provider are all
televisit … Per ee her last visit with Dr Lee was 10/31/20 and was a
televisit … [and] her last office visit was back in March, 2020. Per ee
ALL visit[s] at Kaiser are televist during the pandemic. … Per ee she
did have surgery on 11/23/20 with Dr Efron … [and] ha[d] a tumor[]
removed from her head. … Per ee she mailed the op report on 12/1/20.
AA advised we do not have the op report at this time. …EE expressed
she [i]s sending what she ha[s] and that all the visit[s] even PT [were]
done [by] televisit. … AA advised she will review her claim again …
21

2

and await the op report from 11/23/20. … Plan: AA will discuss claim
with administration as the clinical[s] from Kaiser are [by] televist[.]
[T]his is the only type of visit that [is] being done at this time. …
would also like to see the op report that ee mailed on 12/1/20[.]

3

Id. That same day, Laurie Lee consulted someone named Lisa Lefkowitz about the claim. Id. That

4

claim note indicates that Laurie Lee “advised that ee’s visits with the provider and PT are

5

televisit” and that there was “no in person visit for physical exam.” Id. Laurie Lee also advised

6

that E.L. recently had “a procedure and mailed the report on 12/1/20.” Id. Hartford’s plan was to

7

“allow until next week (7-10 business days) … for clinical to come in” before doing a “walk up

8

with MCM to see if the noted clinical change[s] the prior determination/recommendation.” Id.

1

United States District Court
Northern District of California

9

On December 14, 2020, Laurie Lee made another clinical consult referral, again describing

10

E.L.’s job as having a “sedentary job demand” that “consist[ed] of desk work.” Id. at 1476. The

11

note also again described E.L.’s original diagnosis as “major depressive disorder, single episode,

12

unspecified.” Id. (emphasis removed). This clinical consult referral added that “EE reports due to

13

COVID 19 all ov went televisit” and that E.L. “was referred to Dr Efron … SX performed

14

11/23/20, req oow 11/23/20-1/4/20.” Id.

15
16

On December 17, 2020, Hartford Medical Case Manager Elizabeth Bush conducted a
clinical consult review. As next steps, she recommended:

17

1.If needed, recommend post -operative OV from Dr. Efron with
recent PE findings, complications due to surgery, treatment plans,
specific R&L and RTW plans. If further clinical impact is needed,
send CCR as per process. 2. Recommend prior to any CCR, updated
complete detailed TPC with emphasis on perceived barriers to RTW,
current pain/symptoms, treatment plan, response to current treatment,
RTW plan, and a DETAILED description of daily activities

18
19
20
21
22

Id. at 1476.
E.L. had scheduled another appointment with Laurie Lee for January 11, 2021. See id. at

23

1476. Laurie Lee’s claim note for that call indicated that E.L. “has no other clinical from Dr. Lee”

24

and mentioned that E.L. “advised due to COVID she did not have in office visit, even her therapy

25

was done [by] televisit.” Id. Laurie Lee informed E.L. about her right to appeal and “advised ee

26

the time oow from 11/23/20 supports but not from LTD start date of 8/17/20.” Id.

27

E.

28

On January 12, 2020, E.L. appealed Hartford’s denial of her LTD claim. See AR 918–26.

E.L.’s Appeal of Her LTD Claim

22

1

Along with the disability appeal questionnaire, E.L. also submitted a personal letter, list of

2

providers and appointment dates, and a work status report from Dr. Lee placing her off work due

3

to “uncontrolled symptoms” from January 5, 2021 through March 5, 2021. Id. at 920, 924–26. In

4

her letter, E.L. explains that her “illness began” December 2, 2019, when she “fell down at work.”

5

Id. at 924. She listed the following diagnoses and medications with date of onset for which she is

6

experiencing symptoms and receiving care:

7
8
9
10

United States District Court
Northern District of California

11

1. DM2 W Hyperlipidema 08/09/2019
2. Female Genital Prolapse 09/04/2019
3. Pituitary Macroadenoma 11/14/2019
4. Headache 12/02/2019
5. Sjorgens Syndrome 12/06/2019
6. Cervical Disc Herniation Myelopathy 03/23/2019
7. Major Depression Disorder 05/28/2020
8. Type 2 Diabetes 06/09/2019

12

Id. She reported that “[t]his is the most burden time of my life. I still have uncontrollable

13

symptom[s] of my body falling. My neck and lower back are so much in pain. I always have my

14

headache. My growth hormone level cause[s] my body, my hands, my feet, my bone [to grow] big

15

and also enlarged my heart. My join[ts] are [in] pain. I often have … shortness of breath.” Id. In

16

that letter she also explained that her doctors “have been helping and providing medications,

17

treatments and therapy through the phone and video visits” because of the COVID-19 pandemic.

18

She also mentioned the November 23, 2020 surgery and that her doctors recommended “another

19

surgery for …[her] spine.” Id.

20

On February 12, 2021, E.L. had a telephone call with Hartford Appeal Specialist Kay

21

Hinsey to discuss her appeal. See id. at 1575–79. The contact note says that E.L. “confirmed DCI

22

2/17/20 initially due to stressful work environment, harassment and abuse resulting in anxiety and

23

depression” that “she continued to treat with a psychiatrist for monthly visits telephonically for

24

medication management.” Id. at 1578. Those symptoms “are controlled with medication.” Id. That

25

note states further that E.L. “advised the reason she is unable to RTW at her job as a technician

26

[is] that [it] requires her to sit on [a] bench and build products, she has to walk back and forth,

27

sit/stand, [and] walk [the] factory floor due to cervical disc herniation with myelopathy.” Id. E.L.

28

described losing balance and falling when moving her neck right and left and bending her neck. Id.
23

1

She reported that falls “occur with sitting and standing” but not when walking and shared that she

2

can “still drive but only short distances.” Id. She explained that her symptoms, including

3

headaches, dizzy spells, and joint pain have worsened since her surgery. Id. E.L. asked “for more

4

time to provide the OVNs as of oct. 2020-2/9/21 from Dr. Lee, PT notes as of Oct. 2020-2/10,

5

[and] MRI brain results.” Id. Kay Hinsey noted that the appeal would be on hold for 30 days. Id.

6
7

According to a letter from Kay Hinsey to E.L. dated February 18, 2021, Hartford received
updated records from Kaiser that month:

8

On 02/16/2021 and 02/17/2020 we received the treatment notes from
Dr. Lee, neurology, date range 08/31/2020 through 02/09/2021, and
physical therapy progress notes date range 10/12/2020 through
02/02/2021. We also received the results from a magnetic resonance
imaging (MRI) brain study, dated 11/02/2020, the results from a MRI
head study, dated 12/27/2020, and the evaluation report of your visit
with Dr. Yen Hoang Ngo, ophthalmology, dated 02/02/2021.

9
10

United States District Court
Northern District of California

11
12

Id. at 1324–25. The letter noted that Hartford “started the appeal review process on 02/18/2021”

13

and aimed to make a determination by “no later than 04/03/2021.” Id. at 1325 (emphasis in

14

original).

15
16

1.

Physician Review Report – March 5, 2021

On February 22, 2022, Kay Hinsey referred E.L.’s case to MLS Group of Companies, LLC

17

for a physician review of the claim. See AR 1085. Dr. Mostafa Farache, M.D., reviewed the claim

18

and completed a report on March 5, 2021. See id. at 1085–1091. Dr. Farache is board certified by

19

the American Board of Neurology and Psychiatry and the American Board of Neurophysiology

20

and provided “a review from a neurological perspective.” Id. at 1086, 1090. Dr. Farache’s report

21

listed E.L.’s physical demand rating as “[s]edentary” and her diagnosis as only “M50.022 –

22

cervical disc disorder at C5-C6 level with myelopathy.” Id. at 1085 (emphasis removed). Dr. Brian

23

Lee was the only doctor listed under provider contact information. Id. The report indicates that Dr.

24

Farache was unsuccessful in reaching Dr. Lee by phone. See id. at 1088. On both February 25,

25

2021 and March 1, 2021, Dr. Farache reports that he spoke to a receptionist, leaving a message

26

and call back number. Id.

27
28

Dr. Farache concluded that “[d]ue to the nature of the claimant’s surgery and need for
recovery,” “impairment … is supported” from November 23, 2020 to January 4, 2021. Id. at 1089.
24

1

He concluded that no other restrictions and limitations are supported outside of that timeframe. Id.
Based on Dr. Lee’s opinion that “the neurological exam showed discordance between

United States District Court
Northern District of California

2
3

direct and indirect examination, and that the claimant did not have any neurological localizing

4

lesion to explain her symptoms,” and that the “MRI brain did not show any findings that could

5

explain the claimant’s reports of dizziness/imbalance complaints,” Dr. Farache concluded that

6

“[t]hese findings suggest that the claimant was manufacturing her findings.” Id. at 1089. He

7

asserted that “[t]here was insufficient objective evidence to validate the claimant’s complaints of

8

dizziness/imbalance, weakness and paresthesia” and that E.L.’s “headaches were not of severity to

9

substantiate work preclusion.” Id. He noted that “it would be reasonable for the claimant to miss

10

work on the days in which her headache would require the need for emergency room services.”

11

Id.4

12
13
14

Dr. Farache was asked to answer the question: “Based on your review of the provided medical
documentation, is there clinical evidence to support functional impairment from 8/17/20 to the
present and beyond?” His response in full was:
4

15

The claimant underwent a transsphenoidal resection of the pituitary
macroadenoma with uncomplicated post operative course on
11/23/2020. Due to the nature of the surgery and need for recovery,
off work restrictions from 11/23/2020 to 1/4/2021 would be
supported. No other restrictions and limitations are supported outside
of 11/23/2020 to 1/4/2021. On 1/4/2021, the claimant was seen by Dr.
Brian Lee who noted that the claimant was 6 weeks post op. He noted
that the claimant complained of frontal headache. He noted that the
claimant complained of weakness in all extremities with standing up
to walk. He noted that the claimant complained of burning pain in the
hands and feet. On 2/9/2021, he noted that the claimant complained
of burning paresthesia in the hands and feet, that the tilts to the side
she looks at, that the claimant complained of her balance being off,
that the neurological exam showed discordance between direct and
indirect examination, and that the claimant did not have any
neurological localizing lesion to explain her symptoms. These
findings suggest that the claimant was manufacturing her findings.
The MRI brain did not show any findings that could explain the
claimant’s reports of dizziness/imbalance complaints. There was
insufficient objective evidence to validate the claimant’s complaints
of dizziness/imbalance, weakness and paresthesia. The claimant’s
headaches were not of a severity to substantiate work preclusion.
However, it would be reasonable for the claimant to miss work on the
days in which her headache would require the need for emergency
room services.

16
17
18
19
20
21
22
23
24
25
26
27
28

AR 1089.
25

1
2

His core reason for declining to find limitations and restrictions was “insufficient medical

3

evidence such as examination findings, diagnostic testing, and etcetera to correlate with the

4

claimant’s complaints. … [T]here are no supported restrictions and limitations outside of the time

5

in which the claimant was [in] recovery from surgery.” Id. “As the claimant has no objective

6

findings on exam or imaging to explain the claimant’s complaints and this is thought to be

7

psychogenic,” Dr. Farache wrote, “then a good prognosis is expected from [a] neurological

8

perspective.” Id. at 1090.

9

United States District Court
Northern District of California

Dr. Farache acknowledged that E.L.’s “reported complaints are consistent.” Id. at 1089.

In a March 19, 2021 letter, Hartford’s Kay Hinsey notified E.L. that Hartford was “in the

10

process of reviewing” the appeal but was not yet ready to make a decision. See id. at 1325–26.

11

Along with that letter, Hartford provided E.L. with a copy of Dr. Farache’s review. See id. at 1326.

12

The letter also notified E.L. that she had “21 days from the date of this letter or until April 8, 2021

13

to look over that information and decide if you want to respond” and provide Hartford with

14

“anything else we should review.” Id.

15
16

2.

Physician Review Report Addendum – April 15, 2021

Dr. Farache completed an addendum on April 15, 2021. See AR 1365–71. Hartford had

17

asked Dr. Farache “to comment further on the physical therapy notes from 6/1/2020 – 2/21/2021

18

and progress notes from Dr. Lee at least from 7/31/2020 – 2/9/2021 and explain in detail how

19

these findings in these notes do not support an impairment from 8/17/2020 – 11/2020, and from

20

1/5/2021 to present.” Id. at 1370. He concluded:

21
22
23
24
25
26
27
28

Regarding the physical therapy notes, findings mentioned in the
physical therapy notes have no value if the neurological exam done
by [the] physician does not duplicate these findings. In regards to
progress notes from Dr. Lee, on 11/2/2020, there was a history and
physical documentation in which the neurological exam was normal
and the abnormalities noted on [the] exam were related to acromegaly
and not to any neurological deficits. On 2/9/21. Dr. Brian Lee
documented that there was discordance between direct and indirect
examination which means that the claimant was manufacturing
findings on the neurological exam and that suggests that her
neurological symptoms are also the product of a non-organic cause.
Based on the prior discussion, there are no documented deficits or
abnormality on the neurological exam to support impairment for the
time periods in question (outside of the dates in which impairment
26

was previous[ly] supported) from [a] neurological perspective in this
claimant[‘s] case.

1
2

Id.

3

In a letter dated April 20, 2021, Hartford’s Kay Hinsey notified E.L. that Hartford was still

4

“in the process of reviewing” the appeal and was not yet ready to make a decision. See id. at 1362.

5

The letter said that it included a copy of Dr. Farache’s report and noted that there were

6

“clarifications outlined on pages 8 through 9.” Id. The letter also notified E.L. that she had “21

7

days from the date of this letter or until May 10, 2021 to look over that information and decide if

8

you want to respond” and provide Hartford with “anything else we should review.” Id.

United States District Court
Northern District of California

9

3.

Physician Review Report Addendum – May 3, 2021

10

Hartford sent additional records to Dr. Farache, who completed another addendum dated

11

May 3, 2021. See AR 1233–38. Those records included E.L.’s lumbar MRIs and progress notes

12

from Dr. Lee, Dr. Hwang, Dr. Ngo, Dr. Gutta, Dr. Tasch, and Dr. Foy. Id. at 1234–35. Dr. Farache

13

concluded that “all the providers who evaluated the claimant in the new records provided agreed

14

that she does not have any organic cause of her complaints and that malingering and conversion

15

reaction was the cause of her symptoms.” Id. at 1236. He now opined that E.L.’s “reported

16

complaints are not consistent through the medical data from her treating providers.” Id. (emphasis

17

added). He elaborated: “There is no medical evidence such as examination findings, diagnostic

18

testing, etcetera to correlate with the claimant’s complaints. The claimant[‘s] neurological exams

19

were unremarkable except for findings related to her malingering (manufacturing her own

20

findings) and symptoms are not supported by findings on exams. Exams do prove that the

21

claimant[‘s] complaints are psychogenic or related to malingering.” Id. at 1237. He concluded that

22

E.L. has “[n]o disabling condition” because she “had … Neurology and Ophthalmology

23

evaluations (which found no reason for her symptoms) which is appropriate. … Malingering and

24

conversion disorder prognosis should be good as the claimant does not have any neurological

25

deficit.” Id.

26

In a letter dated May 6, 2021, Hartford’s Kay Hinsey notified E.L. that Hartford was still

27

“in the process of reviewing” the appeal and was not yet ready to make a decision. See id. at

28

1372–73. The letter included a copy of Dr. Farache’s May 3, 2021 addendum. See id. at 1373. The
27

United States District Court
Northern District of California

1

letter itself also listed the additional information that Hartford received and Dr. Farache reviewed

2

in his latest addendum. Id. Hartford once again invited E.L. to comment within 21 days or by May

3

26, 2021. Id.
Final Denial of E.L.’s Administrative Appeal

4

F.

5

On May 28, 2021, Hartford provided E.L. with a final claim determination “agree[ing]

6

with the original decision to deny [her] benefit as of August 17, 2020.” See id. at 1420–24. The

7

letter concluded that E.L.’s “request for LTD benefits was denied, effective August 17, 2020 due

8

to a lack of medical evidence to support a functional impairment, which precluded you from

9

performing the material duties of your own occupation.” Id. at 1421. The letter noted that “there is

10

support for functional impairment from November 23, 2020 to January 4, 2021, due to the nature

11

of … surgery on November 23, 2020” but that “[n]o restrictions are supported outside this period.”

12

Id. at 1422. The denial letter relied heavily on Dr. Farache’s findings. For example, the letter

13

stated: “More recent documentation from the providers who evaluated you opines there is not any

14

organic cause of your complaints and that malingering and conversion reaction was the cause of

15

your symptoms. Your reported complaints are not consistent through the medical data from …

16

treating providers. There is no medical evidence such as examination findings, diagnostic testing

17

to correlate with your complaints.” Id.

18

The letter concludes: “Therefore, based on our review of the aforementioned information

19

detailed herein, we are not able to recommend LTD benefit payment from November 23, 2020

20

onward as the period being addressed is as of August 17, 2020. There is no indication you returned

21

to work [after] the denial of LTD benefits and went out again. The provided medical records

22

lacked clinical evidence to suggest you would not have been able to perform the material duties of

23

your own occupation prior to undergoing surgery on November 23, 2020. As you were not found

24

to be continuously disabled, LTD benefits are not payable for the period beginning November 23,

25

2020. As such the original determination to deny LTD benefits remains upheld, effective August

26

17, 2020.” Id. at 1423.

27

On September 23, 21, E.L. called Hartford and left a voicemail inquiring about re-opening

28

her claim. Id. at 1474. On October 4, 2021, E.L. attempted to reopen the appeal by sending a letter
28

1

to Hartford documenting her ongoing symptoms. Id. at 700. Later that month, Kay Hinsey spoke

2

to E.L. and informed her that there is only one level of appeal. Id. at 1474. On November 2, 2021,

3

E.L. sent an email notifying Hartford that she was collecting social security disability benefits and

4

asking again to reopen her claim. Id.
CONCLUSIONS OF LAW

United States District Court
Northern District of California

5
6

The parties seek opposing judgments: E.L. requests that this Court (1) admit extra record

7

evidence, (2) award benefits with prejudgment interest through August 17, 2022, (3) remand the

8

matter back to Hartford for a determination of E.L.’s entitlement to “any occupation” benefits

9

under the Policy; and (4) award attorneys fees and costs. See Dkt. No. 31, at 29. Additionally, “to

10

remedy Hartford’s breaches of duty,” E.L. seeks “an Order providing that as part of any future

11

decisions concerning [E.L.’s] claim for ‘any occupation’ benefits,” Hartford “(1) provide

12

unredacted copies of its guidelines, policies, and procedures; (2) is precluded from relying upon

13

Ms. Bergner’s and Dr. Farache’s medical opinions and reports in future claims decisions

14

concerning [E.L.]’s claims for benefits, (3) limited to applying only those terms and conditions set

15

forth in the Policy; and (4) is precluded from using any non-Policy terms, conditions, and

16

standards used to date, including the requirement that disability be supported by ‘objective’

17

evidence or have an ‘organic cause.” Id. Hartford requests a judgment in its favor upholding its

18

decision to deny E.L.’s LTD benefits. See Dkt. No. 34, at 31.

19

“ERISA was enacted ‘to promote the interests of employees and their beneficiaries in

20

employee benefit plans,’ and ‘to protect contractually defined benefits.’” Firestone Tire & Rubber

21

Co. v. Bruch, 489 U.S. 101, 113 (1989) (internal citations omitted). ERISA “permits a person

22

denied benefits under an employee benefit plan to challenge that denial in federal court.” Metro.

23

Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). “ERISA’s civil-enforcement provision … allows

24

a claimant ‘to recover benefits due to him under the terms of his plan, to enforce his rights under

25

the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.’” Muniz

26

v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 2010) (quoting 29 U.S.C.

27

§ 1132(a)(1)(B)).

28

“A denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo
29

United States District Court
Northern District of California

1

standard unless the benefit plan gives the administrator or fiduciary discretionary authority to

2

determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115.

3

The parties agree that de novo review is appropriate here. See Dkt. No. 31, at 19; Dkt. No. 34, at

4

21. Under de novo review, “the court simply proceeds to evaluate whether the plan administrator

5

correctly or incorrectly denied benefits,” with no deference given to the administrator’s decision.

6

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc). “The district

7

court’s task is to determine whether the plan administrator’s decision is supported by the record,

8

not to engage in a new determination of whether the claimant is disabled. Accordingly, the district

9

court must examine only the rationales the plan administrator relied on in denying benefits and

10

cannot adopt new rationales that the claimant had no opportunity to respond to during the

11

administrative process.” Collier v. Lincoln Life Assurance Co. of Bos., 53 F.4th 1180, 1182 (9th

12

Cir. 2022). “[W]hen the court reviews a plan administrator’s decision under the de novo standard

13

of review, the burden of proof is placed on the claimant.” Muniz, 623 F.3d at 1294.

14

A.

15
16

The Court Denies E.L.’s Request to Admit Extrinsic Evidence to the
Administrative Record.

E.L. seeks to admit three categories of evidence from outside of the administrative record.

17

First, E.L. seeks to admit an incomplete copy of her Social Security File and SSDI Notice of

18

Award issued after the final denial of her LTD claim. Second, E.L. seeks to admit a letter

19

explaining steps she took to obtain the complete SSDI file. Third, E.L. seeks to admit medical

20

literature, including excerpts from the DSM-5 explaining relevant medical conditions and

21

diagnoses.

22

The Ninth Circuit has held that when courts review a plan administrator’s decision de

23

novo, “extrinsic evidence [can] be considered only under certain limited circumstances.” Opeta v.

24

Nw. Airlines Pension Plan for Cont. Emps., 484 F.3d 1211, 1217 (9th Cir. 2007) (citing

25

Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943–44 (9th Cir.

26

1995)). In most cases, “only the evidence that was before the plan administrator at the time of

27

determination should be considered.” Id. District courts “should not take additional evidence

28

merely because someone at a later time comes up with new evidence that was not presented to the
30

United States District Court
Northern District of California

1

plan administrator.” Mongeluzo, 46 F.3d at 944. “[W]here the original hearing was conducted

2

under a misconception of the law,” however, “it is necessary for the case to be reevaluated in light

3

of the proper legal definitions.” Id.

4

E.L. seeks to have the SSDI award and file admitted because these documents had not yet

5

been available when Hartford issued its final adverse denial. She argues that the file and medical

6

literature, including excerpts from the DSM-5, “are also properly admitted because the Court

7

cannot conduct a proper de novo review of the claim without fully understanding the significance

8

of the medical evidence.” Dkt. No. 31, at 18. E.L. argues that the medical literature in particular

9

“provide[s] explanations of [her] complex medical conditions, as it is apparent from Hartford’s

10

final appeal denial letter that it and its medical reviewers did not understand (or failed to

11

investigate) the complexity of her conditions and significance of the medical evidence.” Id. She

12

specifically refers to Hartford’s “treating malingering and conversion disorder as one condition”

13

despite the two being “mutually exclusive.” Id. Finally, E.L. argues that these documents “are also

14

properly admitted to cure Hartford’s procedural irregularities,” including Hartford’s change in

15

reason for denying benefits without providing E.L. with an opportunity to comment on that

16

changed reasoning. Id. at 19.

17

In response, Hartford first refutes E.L.’s contention that it and its medical reviewers failed

18

to distinguish between malingering and conversion disorder. Hartford contends that Dr. Farache is

19

a board-certified neurologist and psychiatrist and adequately “distinguished between the two

20

throughout his reviews.” Dkt. No. 34, at 29–30 (citing AR 1237). Next, Hartford argues that the

21

SSDI award should not be admitted because the “incomplete SSDI file would inhibit the Court’s

22

ability to assess Hartford’s determination because there is no telling upon what basis the SSA

23

approved benefits.” Id. at 30 (citing Houghton v. Hartford Life & Accident Ins. Co., No. C16-

24

1186RAJ, 2017 WL 3839577, at *7 (W.D. Wash. Aug. 31, 2017)). Third, Hartford argues that

25

“the Administrative Record is over 1700 pages containing medical evidence from 11 different

26

providers and three independent reports,” thereby providing “ample record proof from which” the

27

court “can adequately review [the administrator’s] decision.” Id. (quoting Nguyen v. Sun Life

28

Assurance Co. of Can., No. 314CV05295JSTLB, 2015 WL 6459689, at *5 (N.D. Cal. Oct. 27,
31

1

2015)). “If Plaintiff’s condition remains unexplained,” Hartford argues, “it is because Plaintiff

2

failed to meet her burden.” Id. Last, Hartford refutes E.L.’s argument that she lacked the

3

opportunity to comment on new reasoning. Id. at 30–31. Specifically, Hartford emphasizes that

4

“Dr. Farache’s review and addendums contained the exact language Plaintiff now claims she did

5

not have the opportunity to comment on,” and Hartford “sent Plaintiff Dr. Farache’s initial review

6

(1326), his April 14, 2021 addendum (1362), and his May 3, 2021 addendum (1373). She chose

7

not to respond each time.” Id. at 31.

8

United States District Court
Northern District of California

9

The Court concludes that the circumstances here do not “clearly establish that additional
evidence is necessary to conduct an adequate de novo review” in this case. Opeta, 484 F.3d at

10

1217 (cleaned up). E.L. is correct that the SSDI award was not available when Hartford issued its

11

adverse denial, and courts have at times admitted SSDI records available only after the denial of a

12

claimant’s LTD claim where that decision helped the court evaluate the impact of the claimant’s

13

limitations on their ability to work. See, e.g.¸ Oldoerp v. Wells Fargo & Co. Long Term Disability

14

Plan, No. C 08-05278 RS, 2013 WL 6000587, at *2 (N.D. Cal. Nov. 12, 2013); Schramm v. CNA

15

Fin. Corp. Insured Grp. Benefit Program, 718 F. Supp. 2d 1151, 1165 & n.4 (N.D. Cal. 2010).

16

Given the incomplete record from the Social Security Administration, however, the records E.L.

17

seeks to have added to the record are less likely to aid the Court’s analysis in this case than the

18

records admitted in those prior matters. More importantly, however, the administrative record is

19

extensive and the Court has adequate information to evaluate the credibility and strength of

20

evidence contained therein.

21

As discussed further below, the Court also disagrees that Hartford’s procedural

22

irregularities deprived E.L. of a full and fair review in a manner that might provide independent

23

grounds to admit this evidence.

24

While the Court declines to admit E.L.’s extrinsic evidence, it will take judicial notice of

25

the fact that Functional Neurological Symptom Disorder/Conversion Disorder is a mental disorder

26

listed in the American Psychiatric Association’s Diagnostic Statistical Manual of Mental

27

Disorders. Judicial notice of this fact is appropriate both because the Plan incorporates the

28

American Psychiatric Association’s Diagnostic Statistical Manual by reference in its definition of
32

United States District Court
Northern District of California

1

“Mental Illness,” see AR 1665, and because the contents of the DSM can be accurately and readily

2

determined from sources whose accuracy cannot reasonably be questioned. See Fed. R. Evid. 201.

3

B.

4

To meet her burden under the Plan, E.L. must establish that she has a disability or is

E.L. Is Entitled to Own Occupation Benefits Under the Plan.

5

disabled, defined as being “prevented from performing one or more of the “[e]ssential [d]uties of

6

… [her] [o]ccupation.”AR 1664. Pursuant to the Plan, E.L. must demonstrate that her disability

7

resulted from one of five causes: (1) “accidental bodily injury;” (2) “sickness;” (3) “Mental

8

Illness;” (4) “Substance Abuse;” or (5) “pregnancy.” Id. Of those five causes, the Policy defines

9

only two: “Mental Illness” and “Substance Abuse.” The Plan defines “Mental Illness” as “a mental

10

disorder as listed in the current version of the Diagnostic and Statistical Manual of Mental

11

Disorders, published by the American Psychiatric Association.” Id. at 1665.5 Under the Plan, a

12

“Mental Illness may be caused by biological factors or result in physical symptoms or

13

manifestations.” Id.
E.L. has met her burden of demonstrating that she was unable to perform essential duties

14
15

as defined under the Plan. The Plan defines “Essential Duty” as a duty that is (1) “substantial, not

16

incidental,” (2) “fundamental or inherent to the occupation;” and (3) “cannot be reasonably

17

omitted or changed.” Id. at 1664. The Plan explicitly states that a claimant’s “ability to work the

18

number of hours” in their “regularly scheduled workweek is an Essential Duty.” Id. E.L.’s

19

employer directly indicated that “seated work” and “reduced hours” were incompatible with E.L.

20

performing the duties of her own occupation. See, e.g., id. at 287, 355, 600. As a result, those are

21

duties that “cannot be reasonably omitted or changed.” E.L.’s functional disability must be

22

evaluated with that in mind.

23

The Court further finds and concludes that the weight of the medical evidence from

24

providers who examined and treated E.L. over time demonstrates that E.L. suffered from a

25
26
27
28

5

Excluded from the definition of mental illness under the Policy are the following six disorders
outlined in the Diagnostic and Statistical Manual: (1) “Mental Retardation;” (2) “Pervasive
Developmental Disorders;” (3) “Motor Skills Disorder”; (4) “Substance-Related Disorders;” (5)
Delirium, Dementia, and Amnesic and Other Cognitive Disorders;” and (6) “Narcolepsy and Sleep
Disorders related to a General Medical Condition.” AR 1665.
33

United States District Court
Northern District of California

1

complex but consistent array of physical and psychological symptoms that continued to prevent

2

her from performing her non-sedentary occupation after August 16, 2020. Medical records from

3

E.L.’s treating doctors and physical therapist indicate that E.L.’s “cervical disc herniation with

4

myelopathy” impaired her ability to engage in “all activities with neck flexion, extension, or

5

rotation” and put her at risk of “loss of balance.” See id. at 101–03. Based on these symptoms, Dr.

6

Lee made a surgical referral, id. at 115, physical therapy referral, id. at 119, and ongoing

7

recommendations that E.L. remain off work due to ongoing symptoms, see, e.g., id. at 102, 158,

8

163, 394, 405, 790. A physical treatment protocol was established for E.L. in May 2020 with

9

treatment goals related to E.L. being able to “stand without feeling of being unbalanced” and gain

10

relief from cervical symptoms that impacted her ability to turn her neck and raise her arms

11

overhead, for example. Id. at 120, 121, 124. Hartford’s own notes in mid-August 2020 indicate

12

that, based on medical records, E.L. remained “unable to perform normal job demands while

13

recovering” and therefore “[i]mpairment remained supported thru eob 8/16 beyond odg

14

guidelines.” Id. at 287. Hartford had approved short-term disability benefits based on these

15

impairments and was aware at that time that E.L.’s job could not accommodate seated work and

16

could not accommodate reduced hours. See id. at 287, 600.

17

By August 31, 2020, E.L. had only met one of three treatment goals. See id. at 796–98. She

18

was able to turn her head without symptoms and made progress in standing without feeling

19

unbalanced. Id. at 798. This evidence suggests that the treatment protocols were helping, as her

20

providers reported, but that E.L. continued to exhibit impairing symptoms including an ongoing

21

risk of falling while bending and “back pain and hand weakness, particularly [on the] left side.”

22

See id. at 790–91. Based on these ongoing symptoms, Dr. Lee continued to opine on August 31,

23

2020 that E.L. needed ongoing physical therapy and would not be ready to return to work for at

24

least a few more months. Id. at 790, 803.

25

During that time, E.L. was also exhibiting ongoing symptoms related to “[p]ituitary

26

macroadenoma causing acromegaly” presenting with “classic symptoms of head and foot

27

enlargement, sleep apnea, carpel tunnel syndrome, and dental malocclusion.” Id. at 850–51. An

28

MRI conducted in November 2020 showed that E.L. had a mass that “appears larger than on prior
34

1

imaging.” Id. at 855, 972. Dr. Efron opined that worsening symptoms were a risk of not

2

proceeding with surgery. Id. at 855. Dr. Efron also documented that E.L., while she was “in full

3

remission for major depressive disorder, recurrent episode,” continued to be treated with

4

Cymbalta. Id. at 851. At that time, E.L. was also being treated with Glucophage and Insulin for

5

other conditions. Id. In early November, E.L. continued to make progress in physical therapy, but

6

still had not met two of three treatment goals, see id. at 937–38, prior to undergoing the

7

craniotomy transsphenoidal microscopic tumor excision on November 23, 2020, id. at 899–900.

8

United States District Court
Northern District of California

9

Hartford concedes that “there is support for functional impairment from November 23,
2020 to January 4, 2021, due to the nature of … surgery on November 23, 2020, which included a

10

transsphenoidal resection of the pituitary macroadenoma with uncomplicated post operation

11

course.” Id. at 1422.

12

Records after that time suggest that E.L. continued to exhibit similar and worsening

13

symptoms post-surgery. E.L.’s physical therapist assessed that E.L. “ha[d] increased muscle

14

weakness s/p surgery.” Id. at 948. E.L. had appointments with Dr. Ngo, Dr. Lee, Dr. Hwang, Dr.

15

Gutta, and Dr. Tasch for ongoing symptoms of dizziness and falling.

16

While Dr. Ngo identified “[n]o acute ocular findings to account for symptoms of

17

disequilibrium,” she “quer[ied] if better MRI imaging … would be worthwhile to further evaluate

18

any pathology consistent with” the symptoms. Id. at 978. She made a referral to Dr. Hwang and

19

recommended follow-ups with other providers. Id. She did not conclude that there was no cause

20

for E.L.’s symptoms, nor that E.L. was simply fabricating or manufacturing these symptoms.

21

While Dr. Lee identified “no additional neurologic disorder at this time,” “no single

22

localization within the neuraxis that will produce E.L.’s current constellation of symptoms,” and a

23

“discordance between direct and indirect examination,” id. at 705–06, he did not conclude that

24

there was no cause for E.L.’s symptoms, nor that E.L. was simply fabricating or manufacturing

25

these symptoms. See also id. at 1101–02. Rather, as Dr. Lee discussed with Dr. Gutta, he simply

26

opined that the “etiology is unclear” and not likely to be a “neurologic issue.” Id. at 713–15.

27
28

While Dr. Hwang identified “no clear vestibular or ocular misalignment findings on exam”
and “no detectable optic nerve damage,” he recommended “updated refraction given her
35

1

ani[s]ometropia and hyperopia” to help “her eyes relax.” Id. at 733. Dr. Hwang did not conclude

2

that there was no cause for E.L.’s symptoms, nor that E.L. was simply fabricating or

3

manufacturing these symptoms.

United States District Court
Northern District of California

4

After E.L. “got up from her chair, ran across the room and hit her head on the floor” during

5

a March 2021 appointment with Dr. Gutta, Dr. Gutta referred E.L. to the emergency department

6

and noted that there continued to be no “neurologic focus for her symptoms” and queried whether

7

“?conversion disorder v. malingering” might explain some of these symptoms. See id. at 721.

8

Again, Dr. Gutta did not conclude that there was no cause for E.L.’s symptoms, nor that E.L. was

9

simply fabricating or manufacturing these symptoms. In an April follow-up visit, Dr. Gutta opined

10

that “conversion disorder” might explain the symptoms and recommended a “follow up with

11

psych.” Id. at 719. Dr. Gutta did not mention “malingering” in that progress note. Id.

12

While Dr. Tasch identified no neurological origin for E.L.’s symptoms in March 2021,

13

after noting that E.L.’s growth factor hormones remain elevated, he opined that “she has

14

subclinical functional neurologic disorder/conversion disorder which may be a combination of

15

subjective symptoms from her hormonal fluctuations in combination with psychological stress.”

16

Id. at 709. Again, Dr. Tasch did not conclude that there was no cause for E.L.’s symptoms, nor

17

that E.L. was simply fabricating or manufacturing these symptoms. Rather, after a May follow-up

18

visit, Dr. Tasch “continue[d] to be of the opinion that these symptoms [of exhibited balance

19

difficulties and jerks] represent a form of conversion disorder.” Id. at 712. Elevated growth

20

hormone levels combined with stress are possible causes of these somatic symptoms, as he noted

21

in March.

22

Other providers continued to treat E.L. for additional symptoms. Dr. Kahn diagnosed E.L.

23

with “[a]cromegaly with residual disease after debulking” for weight gain, muscle thickness, and

24

burning in her hands and feet caused by clinically-indicated elevated growth hormone levels. Id. at

25

1206, 1208. Dr. Kahn prescribed E.L. octreotide and recommended “starting medical treatment

26

now” for her presentation of symptoms. Id. Like other physicians, Dr. Kahn did not conclude that

27

there was no cause for E.L.’s symptoms, nor that E.L. was simply fabricating or manufacturing

28

these symptoms.
36

United States District Court
Northern District of California

1

E.L. had a psychiatry appointment with Dr. Venkataraman in May 2021. The notes do not

2

demonstrate whether Dr. Venkataraman evaluated E.L. for conversion disorder. Nonetheless, Dr.

3

Venkataraman did not affirmatively rule that out and instead diagnosed E.L. with “major

4

depressive disorder current mild … due to feeling physically unwell.” Id. at 686. She provided

5

E.L. with two weeks off work on the basis of that diagnosis and increased E.L.’s medication to

6

treat the increase in symptoms. Id. Dr. Venkataraman did not conclude that there was no cause for

7

E.L.’s symptoms, nor that E.L. was simply fabricating or manufacturing these symptoms.

8

Dr. Chang evaluated E.L. for a head and neck surgery follow-up. While he ruled out

9

“BPVV, Meniere’s disease, labyrinthitis, [and] SSCD,” based on her symptoms, Dr. Chang did not

10

rule out “vestibular migraine as a possible etiology although her history of transsphenoidal surgery

11

and pituitary adenoma may [be] contributing to some of her migrainous symptoms …” Id. at

12

1200. He therefore recommended that E.L. continue with “Flonase and nasal saline irrigations.”

13

Id. Dr. Chang did not conclude that there was no cause for E.L.’s symptoms, nor that E.L. was

14

simply fabricating or manufacturing these symptoms.

15

E.L. also underwent two MRIs in March 2021. The first showed relevant findings

16

including, for example, “moderate-severe degenerative disc disease,” “severe compression of the

17

S1 nerve in the lateral recess,” “[l]ower thoracic disc desiccation and annulus bulging and

18

arthropathy right side greater than left,” and “moderate to severe right T12-L1 and T11-12

19

foraminal stenosis.” Id. at 1128. The second MRI included relevant findings, including, for

20

example, that E.L.’s “sella is enlarged and very distorted,” “postoperative changes in the sella,”

21

“loss of curvature and straightening of the spine,” and “[b]ilateral thyroid lesions” with the

22

“largest mass … in the left lobe measuring over 4 cm.” Id. at 1129–31. The reviewing physician

23

recommended an ultrasound. Id. These findings are not indicative of a lack of cause for E.L.’s

24

symptoms, nor would they support the conclusion that E.L. was simply fabricating or

25

manufacturing these symptoms.

26

Based on these records and her ongoing and worsening symptoms, E.L. has established by

27

a preponderance of the evidence that she has been continuously disabled under the Plan. She has

28

experienced persistent neck and back pain, dizziness, headaches, weakness, burning in and
37

United States District Court
Northern District of California

1

enlargement of her hands and feet, anxiety, depression, and related somatic symptoms likely

2

caused by a combination of cervical disc herniation, myelopathy, and degenerative disc disease

3

with clinically supported MRI evidence, pituitary macroadenoma causing acromegaly and

4

acromegaly with residual disease after the removal of a tumor, and clinically indicated ongoing

5

elevated levels of IGF-1 hormones even months after surgery. She has also suffered from mental

6

disorders listed in the DSM including Major Depressive Disorder, Recurrent Episode, Generalized

7

Anxiety Disorder, and Conversion Disorder. The combined effect of these symptoms created a

8

functional impairment that prevented her from fulfilling the essential duties of her occupation.

9

Hartford’s arguments to the contrary are unavailing. First, Hartford contends that E.L.

10

relied solely on her own subjective evidence to meet her burden. In so arguing, Hartford posits that

11

E.L. fabricated her symptoms, which are either unsupported or disproven by the record. See Dkt.

12

No. 34, at 22 –25. That is factually incorrect, as E.L.’s medical file includes objective

13

observations, assessments by treating professionals, and evaluations including several MRIs.

14

While there is evidence that E.L. was not totally impaired in every area of her life—being able to

15

walk, drive, perform her physical therapy exercises well, and showing improvement in some areas,

16

for example—these facts do not prove that E.L. is not credible nor negate otherwise compelling

17

medical records indicating symptoms that impaired her ability to work a full-time non-sedentary

18

job—symptoms that Hartford identified as sufficient to keep her out of work through August 16,

19

2020. Considering both E.L.’s subjective assessment of her symptoms and these clinical

20

diagnoses, test results, and evaluations of symptoms that would be otherwise indicated, E.L. has

21

met her burden.

22

Next, Hartford argues that none of E.L.’s treating physicians presented evidence sufficient

23

to prove disability. Hartford points to E.L.’s noted improvement in physical therapy, Dr. Lee’s

24

lack of explanation in the work status reports, and the virtual nature of E.L.’s appointments with

25

Dr. Lee in 2020 as evidence that E.L.’s treating providers had insufficient evidence to identify a

26

functional limitation. The Court again disagrees. A complete and wholistic review of E.L.’s

27

medical records paints a picture of a woman with a lengthy and complex medical history. E.L.

28

followed the recommendations—at times with hesitation—as her doctors attempted to rule out
38

1

possible diagnoses and identify the causes of a diverse array of symptoms that required surgery

2

and treatment by medication. None of her treating physicians concluded that E.L. simply

3

fabricated her presenting symptoms. That specialists ruled out possible causes or failed to identify

4

a single cause is not proof that E.L. was not functionally disabled.

5
6

she perform non-seated work on a non-reduced work schedule, E.L. has demonstrated by a

7

preponderance of the evidence that she was disabled effective August 17, 2020. Accordingly,

8

Hartford’s rationale for denying the LTD benefits to E.L. is not supported by the record. See

9

Abatie, 458 F.3d at 963. To the contrary, on the basis of the record before Hartford, E.L. was

10

United States District Court
Northern District of California

Taking into account the essential duties of her occupation, including the requirement that

entitled to those benefits under the terms of the Plan.

11

C.

12

Contrary to E.L.’s arguments, Hartford provided E.L. with a full and fair review in this

13

case. The Plan entitles Hartford to “any and all medical information, including x-ray films and

14

photocopies of medical records, including histories,” in order to evaluate a claim. AR 1659.

15

Hartford afforded E.L. multiple opportunities to review and respond to all relevant information,

16

including the reports of Dr. Farache concluding that she was not disabled. See id. at 1325–26

17

(providing E.L. 21 days to respond to Dr. Farache’s March 5, 2021 letter); id. at 1362 (providing

18

E.L. 21 days to respond to Dr. Farache’s April 15, 2021 addendum); id. at 1372–73 (providing

19

E.L. 21 days to respond to Dr. Farache’s May 6, 2021 addendum report). Although Hartford’s

20

final determination relied heavily on those reports, Hartford provided E.L. with an opportunity to

21

respond to each report and to provide additional records in support of her claim.

22
23
24
25
26
27
28

Hartford Provided E.L. with a Full and Fair Review.

Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011), is
inapposite. In that case, the Ninth Circuit held that:
the plan abused its discretion [where its] decision was illogical,
implausible, and without support in inferences that could reasonably
drawn from the facts in the record because (1) every doctor who
personally examined Salomaa concluded that he was disabled; (2) the
plan administrator demanded objective tests to establish the existence
of a condition for which there are no objective tests; (3) the
administrator failed to consider the Social Security disability award;
(4) the reasons for denial shifted as they were refuted, were largely
unsupported by the medical file, and only the denial stayed constant;
39

and (5) the plan administrator failed to engage in the required
‘meaningful dialogue’ with Salomaa.

United States District Court
Northern District of California

1
2

642 F.3d at 676. The Court concluded that the plaintiff had been denied a full and fair review

3

where the plan demanded objective medical evidence of a condition for which “[t]here is no blood

4

test or other objective laboratory test,” id. at 677, and that the “plan also failed to conform to the

5

claims procedure required by statute and regulation” because “the plan did not give Salomaa and

6

his attorney and physicians access to the two medical reports of its own physicians upon which it

7

relied” and “denied the claim largely on account of absence of objective medical evidence, yet

8

failed to tell Salomaa what medical evidence it wanted,” id. at 679. The Court explained that

9

“where the denials [are] based on absence of some sort of medical evidence or explanation … the

10

administrator [is] obligated to say in plain language what additional evidence it needed and what

11

questions it needed answered in time so that the additional material could be provided.” Id. at 680.

12

The facts here are significantly different. Unlike the plaintiff in Salomaa, E.L.’s diagnosis

13

was not clear, and some of the possible diagnoses could be made through objective medical

14

evidence. Further, Hartford’s final denial letter reflected in plain language the reasons for its

15

denial, based largely on Dr. Farache’s reports, and E.L. was provided with those reports and an

16

opportunity respond.

17
18

Ultimately, the plan administrator’s errors here were substantive, not procedural. The
Court therefore finds no denial of E.L.’s right to a full and fair review of her claim.
E.L.’s Motion To Strike is Denied.

19

D.

20

E.L. moves this Court to strike the Declaration of John W. Fogarty, Dkt. No. 34-5 and

21

accompanying Exhibit 1, Chronology of Medical Evidence, Dkt. No. 34-6. Federal Rule of

22

Evidence 1006 provides, however, that a “proponent may use a summary, chart, or calculation to

23

prove the content of voluminous writings, recording, or photographs that cannot be conveniently

24

examined in court.” The Chart summarizes records totaling over 1700 pages and can be admitted

25

by declaration pursuant to Rule 1006.

26
27
28
40

CONCLUSION

1
2

For the foregoing reasons, E.L.’s motion for judgment is granted in part, Hartford’s motion

3

for judgment is denied, and E.L.’s motion to strike is denied. E.L. shall provide a proposed form

4

of judgment to Hartford within five business days of the date of this order. Within five business

5

days thereafter, Hartford shall either sign the proposed judgment, indicating its agreement only as

6

to form, or provide written objections to the form of judgment. Within five business days of

7

receiving Hartford’s response, E.L. shall file either (1) an approved form of judgment or (2) a

8

proposed from of judgment, a copy of Hartford’s objections, and a written response to the

9

objections. The objections and response may not exceed three pages each.

10

United States District Court
Northern District of California

11
12

IT IS SO ORDERED.
Dated: March 27, 2024

13
14
P. Casey Pitts
United States District Judge

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