Tolstedt v. Standard Insurance Company

Filing 26

FINDINGS AND RECOMMENDATIONS. re 16 MOTION for Declaratory Judgment filed by Michael W. Tolstedt, 19 MOTION for Summary Judgment filed by Standard Insurance Company. Judge Magistrate Carolyn S Ostby termed case no longer referred. IT IS RECOMMENDED that Plaintiff Tolstedt's Motion for Entry of Judgment be DENIED and Defendant Standard's Motion for Summary Judgment be GRANTED. Objections to F&R due by 8/20/2012. Signed by Magistrate Carolyn S Ostby on 8/3/2012. (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
MICHAEL W. TOLSTEDT,

CV-12-30-BLG-RFC-CSO

Plaintiff,
FINDINGS AND
RECOMMENDATIONS OF
UNITED STATES
MAGISTRATE JUDGE

vs.
STANDARD INSURANCE
COMPANY,
Defendant.

Plaintiff Michael W. Tolstedt (“Tolstedt”) claims in this ERISA
action that Defendant Standard Insurance Company (“Standard”),
wrongfully terminated his long-term disability (“LTD”) benefits. The
following motions are pending:
(1) Tolstedt’s Rule 52 Motion for Entry of Judgment (Dkt. 16); and
(2) Standard’s Motion for Summary Judgment or, in the
alternative, Motion for Trial by Administrative Record (Dkt. 19).
Having reviewed the parties’ arguments and the administrative record,
the Court enters the following findings and recommendations.
I.

BACKGROUND
Mr. Tolstedt is insured under a group disability policy (the
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“Policy”) that Standard issued to his former employer, the Felt, Martin,
Frazier & Weldon law firm. The parties agree that the Policy is
governed by ERISA, 29 U.S.C. § 1001 et. seq.
On October 13, 2009, Tolstedt was admitted to the Billings Clinic
Hospital and diagnosed with atherosclerotic coronary artery disease
manifested by acute inferior wall myocardial infarction. AR 374. He
underwent surgical stent procedures on October 13, 2009, and again on
November 9, 2009. AR 373, 359.
On November 11, 2009, he filed a claim for long-term disability
benefits, indicating that his illness was atherosclerosis caused by
stress. AR 747. On February 5, 2010, Standard sent a letter to
Tolstedt advising him that his claim was approved. AR 705. The letter
advised that benefits became payable as of January 12, 2010, after the
Benefit Waiting Period of 90 days, but did not state the specific basis
for approval. The letter informed Tolstedt that Standard “will continue
to monitor your medical condition or status” and that Standard would
“monitor and document your continued eligibility for LTD Benefits....”
AR 706-07.
On June 10, 2010, Standard sent Tolstedt another letter, advising
him that Standard had reviewed information to determine the cause of
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his disability and had concluded:
The information in your file supports that you are Disabled by one
or more conditions, including depression. Since depression is
considered to be mental disorders, we will apply the Mental
Disorders Limitation to your claim.
***
The Standard began paying you LTD Benefits for mental
disorders on January 12, 2010. Therefore, the 24 month
Maximum Benefit Period for mental disorders will end January
11, 2012. For your benefits to continue, you must remain
Disabled and meet all other provisions of your Group Policy.
AR 199-200. Standard was relying on the section of the Policy
governing disabilities subject to limited pay periods, in particular the
section captioned: “Mental Disorders, Substance Abuse and Other
Limited Conditions.” AR 808. It provides:
Payment of LTD Benefits is limited to 24 months during your
entire lifetime for a Disability caused or contributed to by any one
or more of the following, or medical or surgical treatment of one
or more of the following:
1. Mental Disorders;
2. Substance Abuse; or
3. Other Limited Conditions.
****
Mental Disorder means any mental, emotional, behavioral,
psychological, personality, cognitive, mood or stress-related
abnormality, disorder, disturbance, dysfunction or syndrome,
regardless of cause (including any biological or biochemical
disorder or imbalance of the brain) or the presence of physical
symptoms. Mental Disorder includes, but is not limited to,
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bipolar affective disorder, organic brain syndrome, schizophrenia,
psychotic illness, manic depressive illness, depression and
depressive disorders, anxiety and anxiety disorders.
The Policy requires payment of LTD benefits “according to the
terms of the Group Policy.” AR 795. Tolstedt contends that he is
entitled to benefits under the policy’s “Own Occupation Definition Of
Disability” which provides:
During the Benefit Waiting Period and the Own Occupation
Period you are required to be Disabled only from your Own
Occupation.
You are Disabled from your Own Occupation if, as a result of
Physical Disease, Injury, Pregnancy or Mental Disorder:
1. You are unable to perform with reasonable continuity the
Material Duties of your Own Occupation; and
2. You suffer a loss of at least 20% in your Indexed Predisability
Earnings when working in your Own Occupation.
****
Own Occupation means any employment, business, trade,
profession, call or vocation that involves Material Duties of the
same general character as the occupation you are regularly
performing for your Employer when Disability begins. In
determining your Own Occupation, we are not limited to looking
at the way you perform your job for your Employer, but we may
also look at the way the occupation is generally performed in the
national economy. If your Own Occupation involves the rendering
of professional services and you are required to have a
professional or occupational license in order to work, your Own
Occupation is as broad as the scope of your license. AR 798-99.

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Tolstedt contends that he has never been disabled by depression,
but rather that his ongoing disability is coronary artery disease which
permanently disables him from practicing law because his heart “can
no longer withstand the rigors and stress of working as a trial
attorney.” Dkt. 7 at 8 (citing Dr. Sample’s letter at AR 658). Dr.
Sample’s November 22, 2011 letter to Standard stated his opinion that
Mr. Tolstedt’s heart disease “permanently disabled [him] from
practicing as a trial lawyer” and “that his depression would not have
disabled him as practicing (sic) as a trial lawyer.” AR 658.
Standard contends that Tolstedt’s cardiac condition is not
disabling. It relies on Dr. Garrison, a cardiologist that reviewed
Tolstedt’s medical records in February 2010 and concluded that
Tolstedt “is capable of returning to full-time work as an attorney with
reasonable continuity.” Dkt. 20 at 10 (citing AR 332). Standard later
hired another cardiologist, Dr. Axelrod, to review Tolstedt’s medical
records. On January 30, 2012, Dr. Axelrod opined that Tolstedt would
have been capable of returning to work at a sedentary level three
months following his last stent procedure. AR 253. Dr. Axelrod
disagreed with Dr. Sample’s assertion that Tolstedt continues to have
stress-induced ischemia and found “no evidence in the supplied medical
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records that Mr. Tolstedt actually experienced cardiac symptoms in
relation to work stress.” AR 254. Dr. Axelrod also disagreed that
avoidance of work stress is the recognized standard of care for
individuals like Mr. Tolstedt. AR 254.
II.

STANDARD OF REVIEW
1.

Summary Judgment

Contending that there is no genuine issue of material fact,
Standard argues that the case should be resolved under Fed.R.Civ.P.
56. Under this rule, summary judgment is appropriate only when there
is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. The moving party has the
initial burden of "identifying for the court those portions of the
materials on file in the case that it believes demonstrate the absence of
any genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets its burden, then the
opposing party may not defeat a motion for summary judgment in the
absence of any significant probative evidence tending to support its
legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d
270, 282 (9th Cir.1979). In a motion for summary judgment, the court
must view the facts in the light most favorable to the non-moving
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party. State Farm Fire and Cas. Co. v. Martin, 872 F.2d 319, 320 (9th
Cir.1989).
2.

De novo trial

Tolstedt seeks entry of judgment in his favor under Fed.R.Civ.P.
52. Unlike a Rule 56 motion for summary judgment, Rule 52(a)
contemplates “an action tried on the facts without a jury or with an
advisory jury” with the Court “find[ing] the facts specially and stat[ing]
its conclusions of law separately.” The Ninth Circuit has held in this
context that, where there are genuine issues of material fact, the
Court’s role is to conduct a trial on the administrative record,
considering additional evidence where necessary. See Kearney v.
Standard Ins. Co., 175 F.3d 1084, 1094–95 (9th Cir.1999). The Court is
to “evaluate the persuasiveness of conflicting testimony,” and make
findings of fact. Id. In ruling on cross motions for judgment under
Rule 52 and “conduct[ing] a de novo review of an administrator's denial
of long-term disability benefits in an ERISA case, the Court effectively
conducts a bench trial upon the record.” Allenby v. Westaff, Inc., 2006
WL 3648655, at * 1 (N.D.Cal. Dec.12, 2006) (citing Kearney, 175 F.3d at
1094–95).
The parties agree that the Court should review de novo
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Standard’s decision to terminate Tolstedt’s disability benefits. DKT 17
at 5; DKT 20 at 17. Where de novo review applies, ... [t]he court simply
proceeds to evaluate whether the plan administrator correctly or
incorrectly denied benefits, without reference to whether the
administrator operated under a conflict of interest.” Abatie v. Alta
Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir.2006) (en banc) (“De
novo is the default standard of review”). “[T]he District Court's ‘de novo
review of the parties' submissions' and resolution thereof, can best be
understood as essentially a bench trial ‘on the papers' with the District
Court acting as the finder of fact.” Muller v. First Unum Life Ins. Co.,
341 F.3d 119, 124 (2d Cir.2003); see also Kearney, 175 F.3d at 1094-95.
The Court’s first task, therefore, is to determine whether a
genuine issue of material fact exists, and, if so, to conduct a de novo
review of the administrative record, receiving additional evidence if
necessary. Jebian v. Hewlett-Packard Co. Employee Benefits
Organization Income Protection Plan, 349 F.3d 1098, 1109 (9th Cir.
2003).
3.

Burden of Proof

Generally, a plaintiff suing for benefits under ERISA, 29 U.S.C. §
1132(a)(1)(B), must establish his entitlement to benefits. Muniz v.
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AMEC Const. Management, 2009 WL 866843, at * 5 (C.D. Cal. 2009)
(citing Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 658 (8th
Cir.1992) and Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038
(11th Cir.1998)). Arguments that the burden of proof shifts to the
insurer where the insurer has terminated benefits (as opposed to
refusing to initially award them), have consistently been rejected. Id.
See also Ermovick v. Mitchell, Silberberg & Knupp LLP Long Term
Disability Coverage for All Employees, 2010 WL 3956819 * 6 (C.D. Cal.)
(holding that the “fact that an employer terminates benefits does not
shift the burden to the employer”); Waissman v. Life Ins. Co. of North
America, 2010 WL 329957, at * 8 (N.D. Cal.) (holding that the burden
of proof remains with the plaintiff).
III. PARTIES' ARGUMENTS
1.

Tolstedt’s Arguments

Mr. Tolstedt contends that by approving his disability claim,
Standard acknowledged that his coronary artery disease disabled him
from continuing the practice of law. In addition, Mr. Tolstedt contends
that Standard's initial letter of approval of disability benefits did not
limit the benefit period to 24 months nor did it state that depression
was the cause of his disability. Rather, Mr. Tolstedt contends that the
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June 10, 2010 letter from Standard claiming that his depression was
the cause of his disability was pretextual to limit his benefit period.
Mr. Tolstedt asks this Court to focus on the fact that the Standard
and its reviewing psychiatrist, Dr. Toenniessen, never assessed the
degree of his mental impairment nor actually stated that he was
disabled due to his depression. Further, Mr. Tolstedt contends that
there was no evidence that he was disabled from practicing law because
of his depression.
In support, he argues that although Dr. Toenniessen found that
he was impaired, she failed to assess the degree of his impairment and
failed to determine whether his mental impairment could be managed
with medication. Ultimately, he contends that Dr. Toenniessen never
opined that his depression disabled him from performing the material
duties of his occupation. Mr. Tolstedt buttresses this argument by
noting that none of his treating physicians or counselor ever opined
that his depression was disabling.
Tolstedt argues that it is his coronary artery disease that
prevents him from practicing law. He contends that Standard's
consulting cardiologists, Drs. Garrison and Axelrod, failed to consider
whether his return to his occupation as a trial attorney will cause him
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to suffer additional stress that would likely to trigger another heart
attack. Mr. Tolstedt argues that Standard's cardiologists place too
much emphasis on the fact that Dr. Sample's procedures may have
reopened his arteries, ignoring that “stress fueled coronary artery
disease will quickly close them again.” Dkt. 17 at 12.
Tolstedt relies on Dr. Sample's letters of February 4, 2011 and
November 22, 2011. See AR 658-659. Dr. Sample opines that Tolstedt
is permanently disabled from practicing trial work and that it is Mr.
Tolstedt's stress from working as a trial lawyer that was causative of
his myocardial infarction. AR 658.
2.

Standard’s Arguments

Standard contends that it granted Tolstedt disability benefits
based on his depression. Dkt. 21 at 3, ¶ 8. Standard states that it
requested Tolstedt’s medical records and waited for those medical
records to arrive before sending them to an independent physician
consultant to opine on Tolstedt’s physical condition. See Dkt. 20 at 7.
In the meantime, Standard contracted with psychiatrist Linda
Toenniessen to review Tolstedt’s therapy records. Id. at 8. After
Standard received Tolstedt's cardiac records, it retained cardiologist
Henry Garrison to review them and opine on Tolstedt’s physical
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condition. Id. at 9.
Regarding Mr. Tolstedt's claim that his coronary artery disease
was a ground for granting disability benefits, Standard contends that
Tolstedt physically recovered from his heart attack by February 2010,
and that his heart condition did not disable him from returning to the
practice of law after that time. Dkt. 21 at 3-4. In support, Standard
cites to Tolstedt's medical records and the terms of its Policy.
Looking first at Tolstedt's medical records, Standard refers to Dr.
Garrison’s conclusion that Tolstedt had done well on his cardiac
rehabilitation, noting he "showed excellent exercise tolerance with no
symptoms suggestive of myocardial ischemia." AR 332. Dr. Garrison
concluded that all of Tolstedt’s post-infarction results showed "an
excellent result has been achieved from the interventions," that
Tolstedt "has no limitations or restrictions" and that he is "capable of
returning to full-time work as an attorney with reasonable continuity."
Id.
Further, Standard noted that Tolstedt's medical records showed
that from October 23, 2009, through December 20, 2009, he underwent
19 sessions of monitored cardiac rehabilitation. AR 408-409. During the
course of those sessions, his physical and mental health improved. Id.
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Based on this evidence in the Administrative Record, Standard
contends that it had a reasonable basis to conclude that Tolstedt’s
heart condition did not preclude his continued employment as an
attorney.
From December 2009 through January 2012, Standard notes that
Mr. Tolstedt has seen his cardiologists only three times. In those three
visits, his cardiologists noted no negative events that would be of a
health concern. On February 4, 2011, Dr. Sample classified his cardiac
health at a "functional therapeutic class I rating." AR 285. This class
rating reflects the healthiest class with "no symptoms and no
limitations in ordinary physical activity." AR 250. Dr. Sample
informed Tolstedt that he only needed to be seen annually and that he
needed no medication other than daily doses of aspirin.
As part of the appeal process, Standard had Dr. Richard Axelrod
review all of Tolstedt's medical records and documentation in support of
his claim for continued disability benefits due to his heart condition.
Dr. Axelrod reviewed the documentation as well as Dr. Garrison’s
report and concluded that Tolstedt was physically capable of returning
to working as an attorney as early as February 9, 2010, and that there
were no medical records that supported a conclusion that his
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myocardial infarction was related to his work stress. AR 253-254. Dr.
Axelrod disputed Dr. Sample's conclusions regarding Tolstedt having
suffered work stress-induced ischemic events. Id.
IV.

DISCUSSION

1.

Fed.R.Civ.P. 56 -Summary Judgment

As set forth above, the Court’s first inquiry is whether there
exists a genuine issue of fact for de novo review by the Court. Because
Mr. Tolstedt has indisputably received all benefits to which he would be
entitled for any disability caused by depression or “Mental Disorders,”
and because he does not contend that his depression is disabling, the
central issue before the Court is Tolstedt’s contention that he is entitled
to continuing permanent disability benefits because of his inability to
continue his occupation as a trial attorney due to his coronary artery
disease.
Standard’s motion, along with its Statement of Undisputed Facts
(Dkt. 21), cited to evidence in the administrative records that Tolstedt:
(1) physically recovered from his heart attack by February, 2010, (2)
had only seen his cardiologist on three occasions since then; (3) is not
taking any prescription medication, and (4) is doing well according to
all objective testing at his cardiologist visits. Id. at 3-4, ¶ 9. The
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burden shifts to Tolstedt, therefore, to raise a genuine issue of material
fact as to his disability resulting from his coronary artery disease.
In support of his claim that he is permanently disabled from his
occupation as a trial attorney, he relies on the statements and letters
from his treating physician, Dr. Scott Sample. As noted above, Dr.
Sample’s letters dated February 4 and November 22, 2011, state that
Tolstedt’s coronary artery disease is what permanently disables him
from practicing as a trial lawyer. AR 658-659. Specifically, Dr. Sample
opines that “Mr. Tolstedt’s heart can no longer withstand the rigors and
stress of working as a trial attorney....” AR 658.
Careful review of Dr. Sample’s letters reveals his narrow
determination that Tolstedt cannot perform the occupation of a trial
attorney. But in determining whether a claimant is disabled from his
“Own Occupation,” Standard may consider not only Mr. Tolstedt’s
prior work as a trial attorney, but also any work within the scope of his
license to practice law. As earlier quoted, the Policy provides that
Standard is not limited to looking at the way Mr. Tolstedt practiced
law, but may “look at the way the occupation is generally performed in
the national economy,” including work “as broad as the scope of your
[professional] license.” AR at 799.
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Dr. Sample’s narrow opinion that Tolstedt cannot perform the
duties of a trial attorney does not fully meet the broader definition of
“Own Occupation” found in the Policy. Despite his burden to do so,
Tolstedt has presented no evidence of his inability to use his
professional license in other ways in which lawyers generally performs
in the national economy. The practice of law is not limited to trial
work. Consequently, the Court must conclude that Dr. Sample’s
opinion does not create a genuine issue of material fact that Standard
wrongfully refused to pay Mr. Tolstedt disability benefits beyond
January 12, 2012.
2.

Fed.R.Civ.P. 52 -Entry of Judgment

Even if this Court were to conclude that a genuine issue of
material fact exists and to review the Administrative Record under a
Rule 52 analysis, the Court’s conclusion would be the same.
In Dr. Sample's November 22, 2011 letter to Standard, he states,
in pertinent part, that:
Stress, however, is a well-known and documented factor in
causing coronary artery disease. Before his October 13, 2009
myocardial infarction, Mr. Tolstedt had practiced for many years
as a trial lawyer, an occupation that has a high incidence of
stress-related illnesses, including heart disease. Because Mr.
Tolstedt’s heart can no longer withstand the rigors and stress of
working as a trial attorney, I have strongly urged him to find less
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stressful employment. It is my professional opinion that because
of his heart disease, Mr. Tolstedt is permanently disabled from
practicing as a trial lawyer.
AR at 658 (emphasis added).
Although courts may give significant weight to the opinions of
treating physicians, courts are not required under ERISA to accord
such opinions special deference. Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 834 (2003). Factors affecting the weight of a
treating physician's opinion include the length and nature of the
doctor-patient relationship, the level of the doctor's expertise, and the
compatibility of the doctor's opinion with the other evidence. Jebian v.
Hewlett-Packard Co. Employee Benefits Organization Income Protection
Plan, 349 F.3d at 1109 n.8.
The sole medical opinion in the record to support Mr. Tolstedt's
claim that he is disabled from practicing law due to his heart condition
comes from Dr. Sample. Even if the Court decided to give Dr. Sample’s
opinions great weight, his opinions alone, as discussed above, do not
meet the Policy’s definition of disability for the occupation of an
attorney, which is not restricted to work as a trial attorney. Nowhere
does Dr. Sample state that Mr. Tolstedt’s heart condition precludes him
from performing anything other than his duties as a trial lawyer.
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There are many activities that lawyers can perform other than trial
work. Standard’s vocational case manager considered information on
the practice of law in Montana, including the following descriptions:
acting as trustee, guardian, or executor; drafting wills, trusts; advising
corporate clients; preparing business contracts; settling labor disputes;
teaching college courses in law; drawing up legal documents, and
others. AR at 344.
Moreover, from December 2009 through January 2012, Mr.
Tolstedt saw his cardiologist three times. In those visits, his
cardiologist notes no negative events that would be of a health concern.
In fact, on February 4, 2011, Dr. Sample classified his cardiac health at
a "functional therapeutic class I rating." AR 285. This class rating
reflects the healthiest class with "no symptoms and no limitations in
ordinary physical activity." AR 250. Dr. Sample informed Tolstedt
that he only needed to be seen on an annual basis.
The other medical opinions regarding Mr. Tolstedt's heart
condition come from Standard's consulting cardiologists Drs. Garrison
and Axelrod. Dr. Garrison performed the initial evaluation of
Tolstedt’s coronary artery disease in February 2010, concluding that
Tolstedt had sufficiently recovered from his infarction such that, from a
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cardiac health perspective, he could return to his occupation as an
attorney. Dr. Axelrod performed a second evaluation in January 2012,
concluding that, from a cardiac health perspective, Tolstedt could have
returned to work in February 2010. AR 253.
The parties argue at some length about why Standard initially
decided to pay disability benefits. Tolstedt argues that Standard
clearly decided to award benefits based on his heart condition.
Standard, on the other hand, argues that it decided to award benefits
based on Tolstedt’s depression. The Court need not resolve this
dispute, however, because it is not determinative of the issue before the
Court – whether Mr. Tolstedt has been disabled beyond January 2012
due to his heart condition. The Policy provides that Standard may
investigate Tolstedt’s claim “at any time” and may have an insured
“examined at reasonable intervals by specialists of our choice.” AR at
810. The insured must remain disabled to continue to receive benefits.
AR at 809 (“Return To Work Responsibility”).
No treating or reviewing cardiologist concluded that Tolstedt was
so disabled by his heart condition that he was unable to practice in the
legal profession.
For these reasons, this Court finds entry of judgment in
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Standard’s favor is appropriate.
V.

CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Plaintiff

Tolstedt’s Motion for Entry of Judgment pursuant to Fed.R.Civ.P. 52
(Dkt. # 16) be DENIED and Defendant Standard’s Motion for Summary
Judgment (Dkt. # 19) be GRANTED.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendations of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendations must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after service
hereof, or objection is waived.
DATED this 3rd day of August, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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