Leight v. Union Security Insurance Company
Filing
46
FINDINGS OF FACT & CONCLUSIONS OF LAW: Based on the Administrative Record, the Court construes the motions for summary judgment ( 41 , 42 ) as Trial Memoranda in connection with a bench trial. For the reasons explained herein, the twenty-fo ur month limitation on disability benefits in the LTD Policy does not apply. As a result, I find in favor of Plaintiff. Plaintiff shall prepare an appropriate Judgment consistent with these Findings & Conclusions, and after conferring with Defendant, shall submit it to the Court for signature within 14 days of the date below. See 33-page findings & conclusions attached. Signed on 5/24/2016 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEPHEN LEIGHT,
No. 3:15-cv-01410-HZ
Plaintiff,
v.
UNION SECURITY INSURANCE
COMPANY,
Defendant.
Ralph E. Wiser
1 Centerpointe Drive, Suite 570
Lake Oswego, Oregon 97035
P. Randall Noah
LAW OFFICES OF P. RANDALL NOAH
21 Orinda Way, Suite C, #216
Orinda, California 94563
Attorneys for Plaintiff
///
///
1 - FINDINGS OF FACT & CONCLUSIONS OF LAW
FINDINGS OF FACT &
CONCLUSIONS OF LAW
Katherine S. Somervell
BULLIVANT HOUSER BAILEY PC
300 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204
Horace W. Green
BUCHMAN PROVINE BROTHERS SMITH LLP
2033 N. Main Street, Suite 720
Walnut Creek, California 94596
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Stephen Leight brings this action against Defendant Union Security Insurance
Company under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461
(ERISA), challenging the termination of his long-term disability insurance benefits. Plaintiff's
benefits were discontinued after two years because of a mental illness limitation in his insurance
policy. Both parties move for summary judgment. As explained below, I construe the motions
as Trial Memoranda submitted in connection with a bench trial on the Administrative Record.
Fed. R. Civ. P. 52(a). Based on my review of the record, and my consideration of the parties'
arguments, I enter Judgment for Plaintiff.
BACKGROUND
Plaintiff obtained disability insurance as a benefit of his employment with KVD
Company. Green Decl. Ex. 1, 1-34; ECF 41-1 (Group Long Term Disability (LTD) Policy issued
to KVD Company) ("the LTD Policy"). Plaintiff began working for KVD Company in October
1999, and worked as a software engineer. AR 169, 407, 717.1
1
Citations to "AR" are to the Administrative Record, which is Exhibit 2 to Green's
Declaration; ECF 41-2 - 41-12.
2 - FINDINGS OF FACT & CONCLUSIONS OF LAW
I. The Policy
The LTD Policy provides for a disability income benefit for eligible employees if the
qualifying period is satisfied and the person is under the regular care and attendance of a doctor.
LTD Policy 20. "Disabled" "means that in a particular month or portion of a month, the person
satisfies the Total Disability Test or the Partial Disability Test." Id. at 9. The "Total Disability
Test" is defined as follows:
•
during the first 36 months of a period of disability (including the
qualifying period) an injury, sickness or pregnancy prevents you
from performing with reasonable continuity one or more of the
substantial and material acts necessary to pursue your usual
occupation and you are not working in your usual occupation.
•
after the first 36 months of a period of disability, an injury,
sickness, or pregnancy prevents you from engaging with reasonable
continuity in any occupation in which you could reasonably be
expected to perform satisfactorily in light of your age, education,
training, experience, station in life, and physical and mental
capacity.
Id.
This familiar distinction between a person's "own" occupation and "any" occupation is
further limited by provisions addressing "Special Conditions" and "Mental Illness." The LTD
Policy limits benefits to twenty-four months for "Special Conditions" if the person is limited by
one or more of the "stated conditions" and "you do not have other conditions which, in the
absence of the stated conditions, would continue to exist, limit your activities, and lead us to
conclude that you were disabled." Id. at 25. The "stated conditions" subject to the "Special
Conditions" provision include "Mental Illness." Id. at 14.
"Mental Illness" is defined in the LTD Policy as
3 - FINDINGS OF FACT & CONCLUSIONS OF LAW
a mental disorder listed in the Diagnostic and Statistical Manual for Mental
Disorders, Fourth Edition, Text Revision, as published by the American
Psychiatric Association. A mental illness, as so defined, may be related to or be
caused by physical or biological factors, or result in physical symptoms or
expressions. For the purposes of the policy, mental illness does not include any
mental disorder listed within any of the following categories found in the
Diagnostic and Statistical Manual of Mental Disorders, as published by the
American Psychiatric Association:
***
•
Pervasive Developmental Disorders[.]
Id. at 11.
II. Plaintiff's Claim History
Plaintiff applied for disability coverage under the LTD Policy on July 12, 2012, alleging
an inability to work beginning May 14, 2012. Id. at 717. He asserted that he suffered from
anxiety, depression, and sleep problems. Id. As part of its determination of Plaintiff's claim,
Defendant interviewed Plaintiff over the telephone, obtained treatment records from treating
physician Dr. Christopher Benbow, performed a Behavioral Health Services Assessment, and
spoke with treating physician Dr. Scott Babe. Id. at 42, 708-14, 43, 173-5, 177, 183. Defendant's
staff psychologist Patricia Neubauer, Ph.D, completed the Behavioral Health Services
Assessment and spoke with Dr. Babe. Id. at 173-75, 177.
Dr. Benbow's records from 2012 noted Plaintiff's anxiety and depression and treatment
with various prescription medications including Seroquel, Celexa, Xanax, and Viibryd. Id. at
709-14. His records also indicated that Plaintiff recently purchased a home in Oregon, hoping to
be able to continue working for his employer remotely. Id. The employer rejected the idea. Id.
In talking to Defendant's claim representative, Plaintiff reported that he could not concentrate, he
4 - FINDINGS OF FACT & CONCLUSIONS OF LAW
was bothered and agitated by sounds, and sometimes he felt like he could not even open his eyes.
Id. at 42. Plaintiff reported a long history of struggling with depression. Id. He believed his
work product was suffering and he decided to "go out" on disability. Id. He felt that none of the
drugs he had tried had been successful. Id. In August 2012, he informed Defendant that he had
moved to Oregon and that his new psychiatrist was Dr. Babe. Id. at 43. He told Defendant that
Dr. Babe had diagnosed him with Asperger's Disorder. Id.
As part of her Behavioral Health Services Assessment, Dr. Neubauer reviewed Plaintiff's
initial claim and reviewed Dr. Benbow's 2012 records. Id. at 173-75. She noted Plaintiff's longstanding history of chronic depression, but concluded that the information provided was not
conclusive of a major depressive disorder as opposed to a dysthymic disorder. Id. She also
commented that Plaintiff's significant difficulty with interpersonal interactions could be
explained by Asperger's Disorder. Id. But, she noted that Asperger's Disorder is a
developmental disorder which would not be expected to prevent him from working because it is
longstanding and present throughout life cycles. Id.
Dr. Neubauer's notes from her September 7, 2012 conversation with Dr. Babe indicate
that he remarked that Plaintiff's clinical picture is "more complex" with changing diagnoses
including depression, anxiety, bipolar disorder, Cyclothymia, and oppositional defiant disorder.
Id. at 177. Dr. Babe thought Plaintiff had Asperger's Disorder and "had flown below the radar."
Id. He noted that Plaintiff's significant interpersonal issues caused job issues. Id. Dr. Babe
reported that Plaintiff has problems tolerating others' social behavior and then becomes
depressed. Id. He wants to create relationships but is impeded by his anxiety. Id. Plaintiff had a
"magical" belief that moving to Oregon would decrease his stress and that everything would be
5 - FINDINGS OF FACT & CONCLUSIONS OF LAW
wonderful. Id. Dr. Babe described Plaintiff as simplistic and hopeful in his views of what he can
do. Id. He had problems focusing, and Dr. Babe opined that Plaintiff would be easily
overwhelmed, even when attempting to perform familiar work from home. Id. He would
definitely be overwhelmed by a return to a job setting. Id. Dr. Babe noted that Plaintiff is very
anxious when he leaves his house, but that Plaintiff was forcing himself to do a couple of things.
Id.
Dr. Neubauer also received a note from Dr. Benbow who said that while Plaintiff was
under his care, Plaintiff was unable to work regularly and had frequent absenteeism due to
problems with extreme anxiety and depression. Id. at 182. He noted that even when Plaintiff
was able to go to his office, he was unable to engage in productive work. Id. He frequently
became internally preoccupied or needed to go outside. Id. Dr. Benbow opined that Plaintiff had
been unable to work productively for "quite some time" but he had a "supportive employer who
was surprisingly tolerant." Id. Dr. Benbow noted that social anxiety was a prominent feature of
Plaintiff's disorder and that Plaintiff did better outside of social settings. Id. The hope was that
with a simpler life, Plaintiff might regain some of his functional abilities and gradually
reintegrate into a more mainstream lifestyle. Id.
Based on the additional information obtained from Dr. Babe and Dr. Benbow, Dr.
Neubauer concluded that Plaintiff's anxiety limited his ability to work. Id. at 183. On November
6, 2012, Defendant informed Plaintiff that his claim was approved, with a disability onset date of
May 14, 2012. Tr. 256-58. In the approval letter, Plaintiff was informed that the Special
Conditions provision of the LTD Policy applied to his claim. Id. at 257.
In March 2013, Donna Ashley, R.N., completed another Behavioral Health Services
6 - FINDINGS OF FACT & CONCLUSIONS OF LAW
Assessment of Plaintiff. Id. at 347. She reviewed information obtained by Dr. Babe, noting that
his current diagnoses were major depressive disorder, recurrent, psychotic features; general
anxiety disorder; and "rule out" Asperger's. Id. She also remarked on Plaintiff's continued
problems with relationships, employment, and finances. Id. She noted his medications. Id.
Ashley concluded that Plaintiff was incapable of returning to work unless it was a remote
situation and even then, she remarked, Dr. Babe had indicated that he could not estimate
Plaintiff's ability to function. Id. Plaintiff's anxiety continued to be severe. Id. Ashley
determined that Plaintiff was unable to perform job duties or search for new employment due to
symptoms related to his diagnosis. Id.
One year later, in March 2014, Dr. Neubauer completed a Supplemental Behavioral
Health Services Assessment of Plaintiff. Id. at 379-80. She noted that under the "mental
nervous/special conditions" provisions of the LTD Policy, Plaintiff's benefits would cease in
August 2014 and that Plaintiff had asked for a review of this determination. Id. Plaintiff
believed his claim should be extended because of his Asperger's Disorder. Id. Dr. Neubauer
reviewed Dr. Babe's March 2013 supplemental report, upon which Ashley had relied the previous
year. Id. She also noted that in a March 2014 conversation with Defendant's claims staff,
Plaintiff reported having had Asperger's Disorder for a long time and now believed he could not
work with the condition. Id. Plaintiff stated that depression and anxiety were symptoms of his
Asperger's Disorder/autism spectrum disorder. Id. He hoped for a flexible, low stress, quiet job
that allowed him to regain some of his life. Id.
In her report, Dr. Neubauer recited that Asperger's is part of the autism spectrum and is a
pervasive developmental disorder with severe and sustained impairment in social interaction and
7 - FINDINGS OF FACT & CONCLUSIONS OF LAW
the development of restricted, repetitive patterns of behavior, interests, and activities. Id. She
explained why Asperger's is distinct from other autistic disorders. Id. She noted that impairment
in reciprocal social interaction is sustained and there may be a failure to develop peer
relationships appropriate to developmental level. Id. She also noted possible impairment in
social adaptation. Id. She indicated that Asperger's Disorder is a "continuous and lifelong
disorder" and further, good verbal abilities can mask the severity of social dysfunction. Id.
Next, Dr. Neubauer concluded that the records showed no significant change in Plaintiff's
Asperger's Disorder since the onset of his claim. Id. She explained:
What changed is depression and anxiety that developed relative to major
depressive disorder and generalized anxiety disorder. While he attributes these
symptoms to his Asperger's, the symptoms are not physiologically attributable to
the illness but rather part of an emotional response to his life circumstances,
potentially lacking sufficient coping and the impact of the psychiatric illness that
accompany his Asperger's diagnosis.
Id. at 380.
Dr. Neubauer continued to conclude that Plaintiff's Asperger's was present when he was
able to work and it was his increased anxiety and depression, conditions subject to the special
conditions provision, which prevented him from working. Id. While Asperger's Disorder is a
pervasive developmental disorder, Dr. Neubauer concluded that it would not be limiting in the
absence of "the comorbid depression and anxiety." Id. Thus, the special condition/mental illness
limitation applied. Id.
In June 2014, Dr. Neubauer issued another Supplemental Behavioral Health Services
Assessment. Id. at 457-59. She had now reviewed several records from Dr. Babe, starting in
March 2013 and continuing to March 2014. Id. She concluded that the information from Dr.
8 - FINDINGS OF FACT & CONCLUSIONS OF LAW
Babe as well as information in "general literature" did not "corroborate" Plaintiff's statements that
Asperger's Disorder was properly considered to be Plaintiff's limiting condition or that his
depression and anxiety are part of Asperger's Disorder rather than comorbid diseases. Id. at 458.
She noted that Plaintiff functioned with his Asperger's Disorder for many years without
depression and anxiety impacting him in the work setting. Id. She remarked that the available
information supported a conclusion that the exacerbation of depression and anxiety comorbid to
his Asperger's Disorder limited his ability to function in a work setting. Id. She found nothing in
a "brief review" of Asperger's Disorder literature that supported a determination that overuse of
cognitive abilities caused depression and anxiety. Id. At this point, her recommendation noted
that if additional review became necessary, peer review by a psychiatrist specializing in pervasive
developmental disorders and mood disorders would be necessary. Id. She included several
specific questions if such a peer reviewing psychiatrist were used. Id. at 458-59.
In August 2014, Claims Analyst Cherie Payton reviewed Plaintiff's claim file and
determined that Plaintiff's Asperger's Disorder did not physically limit him from performing his
job duties as a software developer/computer programmer. Id. at 465. Special Technician Sherry
Schoonbeck reviewed the decision and agreed with the recommendation to deny benefits on the
basis that Plaintiff's disabling conditions are Special Conditions as defined by the LTD Policy
and are limited to twenty-four months of coverage. Id. Plaintiff was not disabled from any
condition that is not a Special Condition and therefore, his benefits were to end on August 19,
2014. Id.
In December 2014, Plaintiff appealed the termination of his LTD Policy benefits,
disputing that his anxiety and depression were comorbid conditions with his Asperger's Disorder.
9 - FINDINGS OF FACT & CONCLUSIONS OF LAW
Id. at 522. Plaintiff included several documents as part of his appeal, including a letter citing to
several research references regarding Asperger's Disorder and autism spectrum disorders,
medical records, and a favorable disability decision from the Social Security Administration
(SSA). Id. at 521.
Plaintiff's appeal also included an April 7, 2014 chart note from Dr. Babe where he
continued to assert that Plaintiff's condition was Asperger's Disorder and Depression NOS. Tr.
569. Dr. Babe reiterated that throughout the years, Plaintiff had been diagnosed with bipolar
disorder, depression, anxiety, and even psychotic disorders. Id. In Dr. Babe's opinion, however,
his primary and fundamental diagnosis was Asperger's Disorder which creates complications
such as depression and anxiety. Id. Although Plaintiff was previously able to function in the
work environment, this was only because the circumstances were very specific and allowed him
to contain the discomfort that Asperger's caused him in dealing with social circumstances. Id.
After he was required to do new things at his job, he was no longer able to tolerate or control his
severe symptoms. Id. Dr. Babe concluded that "his primary diagnosis is Asperger's which
subsequently exacerbates and contributes to his tremendous anxiety and depression." Id.
The other medical records included in Plaintiff's appeal were treatment notes from Dr.
Andrew Schiffman from 2007-2010. Id. at 528-50. They are not entirely legible, but they appear
to show ongoing psychiatric treatment during that period for depression and anxiety. Id. Also
included was a June 2, 2010 evaluation performed by psychiatrist Dr. Stephen Stahl, M.D., who
saw Plaintiff at Dr. Schiffman's request for a psychopharmacological evaluation. Id. at 551.
Plaintiff described a long history of depression, including a hospitalization in high school and
later, one suicide attempt. Id. At some point, Plaintiff stopped taking anti-depressant medication
10 - FINDINGS OF FACT & CONCLUSIONS OF LAW
and treated his depression with exercise, strenuous hiking, and strenuous biking. Id. Then, in
approximately 2006, he inexplicably become much more anxious. Id. Dr. Stahl went through
both Plaintiff's and his family's medical history and performed a mental status exam. Id. at 55153. He opined that Plaintiff had probable organic anxiety disorder secondary to encephalitis,
superimposed upon a preexisting depressive disorder. Id. at 552. Dr. Stahl made suggestions for
medications. Id. at 553.
Also included in the appeal documents was a December 10, 2014 letter from Dr. Babe
who stated that Plaintiff's primary diagnosis was Asperger's Disorder which he had had
throughout his life. Id. at 527. Dr. Babe believed that Plaintiff was able to cope in his work life
by "break[ing] things down into parts" and because he worked in a very circumscribed, specific
area within his company. Id. As the job demands and requirements became "increasingly
difficult and required significantly greater mental flexibility, he began to deteriorate." Id. The
mental flexibility now required of him included the need to interact and be around others and to
tolerate normal work environments without irritation. Id. Plaintiff, like many Asperger's
Disorder patients, has a sensory integration problem, and loud, noisy, or even quiet environments
with unpredictable or distracting noise, can create problems. Id.
Dr. Babe also noted that while Plaintiff worked hard to maintain a socially normal
appearance around others, this required an overwhelming amount of mental calculation. Id. This
requirement, along with the unpredictable environment, created increasing anxiety and as he
began to fail within his work and social life, he became depressed. Id. In Dr. Babe's opinion,
"[a]tlhough . . . fear, anxiety, and depression have been present for a long time, [Plaintiff] clearly
was able to function at work until[] the demands of the job overwhelmed his Asperger's Disorder
11 - FINDINGS OF FACT & CONCLUSIONS OF LAW
and sensory integration condition." Id.
On January 6, 2015, Defendant's Appeals Specialist Michele Falen recommended
obtaining a peer review with the questions provided by Dr. Neubauer. Tr. 571-74. Dr. Melvyn
Lurie, M.D., a board-certified psychiatrist, performed a medical record review and wrote a
twenty-page report dated January 21, 2015. Id. at 577-97. He did not personally examine
Plaintiff. Although he attempted to speak with Dr. Babe, Dr. Babe "could not/would not"
communicate with Dr. Lurie absent a release from Plaintiff. Id. at 590. Dr. Lurie's report states
that Defendant was informed of this but "[t]he decision was made to complete the report without
[Dr. Babe's] input." Id. at 590.
In addition to reviewing the medical records of Dr. Schiffman, Dr. Stahl, Dr. Benbow,
and Dr. Babe, Dr. Lurie reviewed Plaintiff's SSA disability decision. Id. at 588-89; see also id. at
485-97 (SSA Administrative Law Judge (ALJ) Favorable Decision). Dr. Lurie also reviewed
Plaintiff's resume, an activities questionnaire, and a job summary. Id. at 589-90.
In his report, Dr. Lurie noted that the most recent Diagnostic & Statistical Manual of
Mental Disorders (DSM-5)2, does not treat Asperger's Disorder as a separate disorder but instead
includes it as part of Autism Spectrum Disorder. Id. at 591. He noted that in the DSM-IV
version, depression and anxiety are considered to occur in twenty-percent of Asperger's patients,
but are considered to be comorbid conditions, not "biological extension[s] of Asperger's." Id. at
592.
2
The Diagnostic & Statistical Manual of Mental Disorders is published by the American
Psychiatric Association. The most current edition is the Fifth, published in 2013, and noted
above as the "DSM-5." The previous edition is the "Text Revision" of the Fourth Edition,
referred to as the "DSM-IV-TR." The previous edition to the DSM-IV-TR is the Fourth Edition,
referred to as the "DSM-IV."
12 - FINDINGS OF FACT & CONCLUSIONS OF LAW
Dr. Lurie rejected the diagnosis of Asperger's Disorder for Plaintiff because, in his
opinion, Plaintiff "functioned at too high a level for years." Id. at 594. He remarked that Plaintiff
was able to maintain a relationship with a girlfriend, work for over twenty years, engage others,
and even obtain help from others. Id. These were not characteristics of someone with
Asperger's. Id. He explained that a person with Asperger's would not have functioned as high as
having a job in the first place. Id. He repeated his assertion that while depression and anxiety
are said to occur about twenty-percent of the time in Asperger's patients, they are comorbid
conditions, and are direct manifestations of Asperger's. Id. He concluded that Plaintiff had had
no impairment since May 2012 based on a psychiatric disorder or from Asperger's Disorder. Id.
at 596.
Based on Dr. Lurie's report, Falen recommended that the initial denial of Plaintiff's appeal
be upheld. Id. at 571. In a January 28, 2015 letter, she notified Plaintiff that she was upholding
the denial. Id. at 608-14. She wrote:
It is therefore my conclusion that your disability was the result of a mental illness,
which is considered a special condition under the policy, and for which benefits
are limited to 24 months. Even if you carry the diagnosis of Asperger's syndrome,
it is not limiting you from performing your usual occupation. Additionally, your
depression and anxiety are co-morbid conditions and are not the result of your
Asperger's syndrome.
Id. at 613.
This lawsuit followed.
STANDARDS
An ERISA plan that does not contain language conferring discretion on the plan
administrator is subject to a de novo standard of review. Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 109, 115 (1989). The parties agree that the proper standard of review in this case
13 - FINDINGS OF FACT & CONCLUSIONS OF LAW
is de novo.
Under a de novo standard, the court construes terms in ERISA trust agreements like any
contractual provision "without deferring to either party's interpretation." Id. at 112. "The terms
of trusts created by written instruments are 'determined by the provisions of the instrument as
interpreted in light of all the circumstances and such other evidence of the intention of the settlor
with respect to the trust as is not inadmissible.'" Id. (quoting Restatement (Second) of Trusts § 4,
cmt. d (1959)). Under de novo review, the rules ordinarily associated with the interpretation of
insurance policies apply. Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech.,
Inc., 125 F.3d 794, 799 (9th Cir. 1997). Accordingly, the doctrine of contra proferentum
requires the court to construe ambiguities against the plan administrator. Id.
"When conducting a de novo review of the record, the court does not give deference to
the claim administrator's decision, but rather determines in the first instance if the claimant has
adequately established that he or she is disabled under the terms of the plan." Muniz v. Amec
Constr. Mgmt., Inc., 623 F.3d 1290, 1295-96 (9th Cir. 2010). The trial court performs an
"independent and thorough inspection" of the plan administrator's decision in order to determine
if the plan administrator correctly or incorrectly denied benefits. Silver v. Exec. Car Leasing
Long–Term Disability Plan, 466 F.3d 727, 733 (9th Cir. 2006). Under de novo review "the
burden of proof is placed on the claimant." Muniz, 623 F.3d at 1294.
In a 2012 decision, Judge Simon concluded that procedurally, the appropriate vehicle for
adjudicating ERISA claims under a de novo review standard is through a bench trial based on the
administrative record. Rabbat v. Standard Ins. Co., 894 F. Supp. 2d 1311, 1314 (D. Or. 2012).
As Judge Simon explained in Rabbat, a de novo standard requires the court to make findings of
14 - FINDINGS OF FACT & CONCLUSIONS OF LAW
fact and weigh the evidence which the court is forbidden to do when deciding a motion for
summary judgment. Id. As an alternative to summary judgment in such cases, the court may
conduct a trial on the administrative record under Federal Rule of Civil Procedure 52. Id. (citing
Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) ("the district court may try the
case on the record that the administrator had before it")). In such a trial,
"[t]he district judge will be asking a different question as he reads the evidence,
not whether there is a genuine issue of material fact, but instead whether [the
plaintiff] is disabled within the terms of the policy. In a trial on the record, but not
on summary judgment, the judge can evaluate the persuasiveness of conflicting
testimony and decide which is more likely true."
Id. (quoting Kearney, 175 F.3d at 1095; further citing Casey v. Uddeholm Corp., 32 F.3d 1094,
1099 (7th Cir. 1994) (on de novo review of an ERISA benefits claim, the "appropriate
proceeding[ ] . . . is a bench trial and not the disposition of a summary judgment motion"); Lee v.
Kaiser Found. Health Plan Long Term Disability Plan, 812 F. Supp. 2d 1027, 1032 (N.D. Cal.
2011) ("De novo review on ERISA benefits claims is typically conducted as a bench trial under
Rule 52.")); see also Sammons v. Regence Bluecross Blueshield of Or., No. 3:15-cv-01703-SI,
2016 WL 1171019, at *2 (D. Or. Mar. 23, 2016) (confirming that the appropriate procedure to
resolve an ERISA claim subject to de novo review is through a bench trial on an administrative
record), appeal docketed, No. 16-35288 (9th Cir. Apr. 19, 2016).
Although the parties have filed cross-motions for summary judgment, I construe the
motions as Trial Memoranda submitted in connection with a bench trial on the Administrative
Record.
DISCUSSION
Plaintiff argues that his depression and anxiety are byproducts of his Asperger's Disorder
15 - FINDINGS OF FACT & CONCLUSIONS OF LAW
and because Asperger's Disorder is exempt from the LTD Policy's definition of "mental illness,"
his disability is not limited to twenty-four months under the "special conditions" provision.
Plaintiff further suggests that the LTD Policy is ambiguous as to how symptoms of a pervasive
developmental disorder such as Asperger's, are treated under the LTD Policy and because any
ambiguity in the policy should be resolved against the Defendant insurer, the LTD Policy should
be construed to provide coverage.
Defendant argues that (1) Plaintiff does not have Asperger's Disorder; (2) even if he does,
it does not cause his anxiety and depression; and (3) even if he has Asperger's Disorder and it
causes his anxiety and depression, he is still limited by the Special Conditions provision of the
policy to twenty-four months of benefits.
I. Asperger's Disorder
Dr. Babe, Plaintiff's treating physician beginning in 2012, told Dr. Neubauer in a
September 2012 phone discussion that Plaintiff's clinical picture was "more complex,"
presumably meaning more complex than the chronic depression/dysthymic disorder Dr.
Neubauer discussed in her September 6, 2012 Behavioral Health Services Assessment in which
she indicated her need to contact Dr. Babe to discuss Plaintiff's condition. Id. at 173-77. Dr.
Babe noted that Plaintiff had been seen by many different specialists and diagnosed with a
variety of conditions. Id. at 177. Dr. Babe, however, determined that Plaintiff had Asperger's
which had "flown below the radar." Id. Dr. Babe then described a variety of symptoms to
support his opinion and functional assessment. Id. (noting that Plaintiff had significant
interpersonal issues which caused job issues; that he could not tolerate others' social behavior and
then became depressed; that he became anxious in public and wanted to create relationships but
16 - FINDINGS OF FACT & CONCLUSIONS OF LAW
became "so anxious").
Plaintiff completed a "Behavioral Health Supplementary Report" dated December 4,
2012, with a physician portion completed by Dr. Babe on December 5, 2012. Id. at 317-18.
There, Dr. Babe confirmed Plaintiff's Asperger's diagnosis (by listing then-current DSM-IV-TR
Diagnosis Code 299.80). Dr. Babe noted Plaintiff's severe anxiety and stated that Plaintiff "can
not interact on a daily basis in an office environment secondary to [illegible] and depression." Id.
Dr. Babe saw Plaintiff throughout 2013 and 2014. Id. at 425-44. During that time, Dr.
Babe treated Plaintiff for his anxiety and depression which remained significant and crippling
despite Plaintiff being able to make progress in certain settings. Id. Dr. Babe's psychiatric
diagnoses continued to be major depressive disorder and Asperger's Disorder or just Asperger's
Disorder. E.g., id. at 444 (March 13, 2013); 441 (April 24, 2013); 438 (June 5, 2013); 434
(August 7, 2013); 432 (Oct. 11, 2013); 429 (Jan. 6, 2014); 426 (Mar. 7, 2014).
In April 2014, Dr. Babe explained in a chart note that Plaintiff had been diagnosed with
Asperger's Disorder since beginning treatment with Dr. Babe. Id. at 569. He noted, as he had in
the past, that Plaintiff had had many different diagnoses over the years but in his opinion,
Plaintiff's "primary and fundamental diagnosis is Asperger's, and that his Asperger's Disorder
creates complications such as depression, and anxiety. Id. Dr. Babe noted that Plaintiff's
previous ability to function in the work environment was only because the "circumstances were
very specific and allowed him to contain his discomfort that the Asperger's caused in dealing
with social circumstances." Id. After his employment conditions changed, he was required to do
new things and he could no longer tolerate or control his severe symptoms. Thus, "his primary
diagnosis is Asperger's" which then "exacerbates and contributes to his tremendous anxiety and
17 - FINDINGS OF FACT & CONCLUSIONS OF LAW
depression." Id.
On December 10, 2014, Dr. Babe wrote a "To Whom it May Concern" letter regarding
Plaintiff's condition. Id. at 527. He explained that beginning with his first evaluation of Plaintiff
over one and one-half years earlier, and continuing throughout, Plaintiff's primary issue has been
Asperger's disorder which had been going on throughout Plaintiff's life. Id. He explained that
there was evidence from Plaintiff's childhood demonstrating Plaintiff's difficulty with social
interactions "subsequently causing multiple sequelae." Id. Dr. Babe further explained:
[Plaintiff] in his work, developed as he describes it "a new way to do things" with
his job which would not be surprising considering how someone with Asperger's
tend[s] to break things down into parts. He was then able to turn this into a
profitable position, however it was in a very circumscribed, and very specific area
within the company that he worked. It is my understanding and belief that as the
job demands and requirements became increasingly difficult and required
significantly greater mental flexibility, he began to deteriorate. This mental
flexibility included the need for him to interact and to be around others as well as
to tolerate normal work environments without irritation. [Plaintiff], as many
people with Asperger's syndrome, also has a sensory integration difficulty, and
loud, noisy, or even quiet environments with distracting/unpredictable noise can
create problems.
Id.
Dr. Babe continued by explaining that while Plaintiff worked hard to maintain the
appearance of "social norm" around others, this required an overwhelming amount of mental
calculation. Id. This need to mentally calculate social settings, combined with an unpredictable
environment, created increased anxiety which affected his work and social life which led to
depression. Id. Dr. Babe stated that although "fear, anxiety, and depression have been present
for a long time, [Plaintiff] clearly was able to function at work until[] the demands of the job
overwhelmed his Asperger's and sensory integration condition." Id.
Dr. Babe is the only one of Plaintiff's three treating psychiatrists over the years to actually
18 - FINDINGS OF FACT & CONCLUSIONS OF LAW
diagnose Plaintiff with Asperger's Disorder, but there is a mention of it in one of Dr. Schiffman's
chart notes from 2008. Tr. 541. While the handwritten note is largely illegible, it suggests that
Dr. Schiffman might have been considering whether Plaintiff had Asperger's. Id. Additionally,
another of Dr. Schiffman's chart notes refers to the possibility of whether Plaintiff had symptoms
of Attention Deficit Disorder (ADD). Id. at 546. As the DSM-IV-TR notes, "[s]ymptoms of
overactivity and inattention are frequent in Asperger's Disorder, and indeed many individuals
with this condition receive a diagnosis of Attention-Deficit/Hyperactivity Disorder prior to the
diagnosis of Asperger's Disorder." DSM-IV-TR 81.
Defendant repeatedly acknowledged Dr. Babe's diagnosis. E.g., id. at 183 (Dr.
Neubauer's Sept. 18, 2012 Assessment noting that Dr. Babe was "considering" a diagnosis of
Asperger's); 379-80 (Dr. Neubauer's Mar. 11, 2014 Assessment noting Plaintiff's Asperger's
diagnosis, stating there had been no significant change in his Asperger's condition, stating that
Plaintiff's Asperger's was present when he was working; concluding that Asperger's would not be
limiting in the absence of the comorbid depression and anxiety); 608-14 (Jan. 28, 2015 claim
denial letter acknowledging Asperger's diagnosis).3
3
In her March 2013 Behavioral Health Services Assessment, Ashley noted Dr. Babe's
current diagnoses as major depressive disorder, recurrent, psychotic features; general anxiety
disorder; and "rule out" Asperger's. AR 347. This was based on a March 13, 2013 Behavioral
Health Supplementary Report completed by Plaintiff and Dr. Babe. Id. at 345-46. Ashley
correctly noted the diagnoses listed in the March 13, 2013 portion of the report attributed to Dr.
Babe. But, a close examination of that report shows that the diagnosis section was filled out by
someone with different handwriting than the portions completed by Dr. Babe addressing
subjective symptoms, objective findings, work capabilities, and vocational rehabilitation. Id.
While Dr. Babe did sign the report, none of his underlying chart notes refer to the Asperger's
diagnosis as a "rule out" and given that this portion of the report does not appear to have been
completed by Dr. Babe himself, I do not give the "rule out" portion of the listed Asperger's
diagnosis, any weight.
19 - FINDINGS OF FACT & CONCLUSIONS OF LAW
In addition to Dr. Babe's diagnosis and the suggestion in Dr. Schiffman's notes of a
possible Asperger's or ADD diagnosis, the SSA also accepted Asperger's as one of Plaintiff's
diagnoses. Id. at 492 (SSA ALJ found, in a September 22, 2014 decision, Asperger's to be one of
Plaintiff's severe impairments). The ALJ noted Dr. Babe's diagnosis and gave great weight to his
opinion. Id. at 494-95. He also found Plaintiff credible. Id.
In support of its position that Plaintiff does not have Asperger's Disorder in the first place,
Defendant argues that Dr. Babe is the "first and only" psychiatrist to offer the diagnosis, and
further, that Dr. Babe did not have the benefit of Plaintiff's prior medical records. Defendant
states that treating physicians Dr. Schiffman and Dr. Benbow, and examining/consulting
physician Dr. Stahl, did not diagnose Asperger's. Defendant then relies on non-examining
physician Dr. Lurie's conclusion that Plaintiff's prior clinical history and current activity level did
not support the diagnosis. Defendant surmises that Plaintiff somehow convinced Dr. Babe to
diagnose him with Asperger's to avoid the twenty-four month limitation for mental illness. See
Def.'s Mot. 12.
I reject Defendant's argument. First, while Dr. Babe is the only one of three treating
psychiatrists to affirmatively diagnose Plaintiff with Asperger's, Dr. Schiffman's notes refer to it,
along with ADD which is often a "pre"-Asperger's diagnosis, as a possible diagnosis. Second,
Dr. Babe spoke to Dr. Neubauer in September 2012 and at that time, told her that in his opinion,
Plaintiff had Asperger's which had been "under the radar." Plaintiff learned of the twenty-four
month limitation in Defendant's November 2012 claim acceptance letter, after Dr. Babe had
diagnosed him with Asperger's. This refutes any argument by Defendant that Plaintiff somehow
pressured Dr. Babe into issuing the Asperger's diagnosis in order to avoid the twenty-four month
20 - FINDINGS OF FACT & CONCLUSIONS OF LAW
limit.
Third, Dr. Lurie's reasons for concluding that Plaintiff does not have Asperger's are
unconvincing because they are not supported by the record. Dr. Lurie gave only two reasons for
rejecting the determination that Plaintiff has Asperger's Disorder: that Asperger's no longer
exists as a diagnosis and that Plaintiff had functioned at too high a level for years.
The DSM-IV-TR recognized Asperger's as a separate disorder, distinct from what was
then called Autistic Disorder and other pervasive developmental disorders, "all of which are
characterized by problems in social interaction." DSM-IV-TR 82. In the subsequent and current
edition, the DSM-5, the broader Autism Spectrum Disorder now encompasses Asperger's
Disorder. DSM-5 53. That Asperger's Disorder has been folded into a broader category simply
means it is no longer a separate disorder. The classification change does not mean that the
symptoms and characteristics which previously constituted Asperger's do not continue to support
a discernable disorder. Thus, the fact that Asperger's Disorder is not currently recognized as an
independent disorder is not a reason for rejecting a conclusion that Plaintiff has a pervasive
developmental disorder (PDD).4
As Dr. Babe has noted, and as the DSM-IV-TR makes clear, Asperger's Disorder is "a
continuous and lifelong disorder." DSM-IV-TR 82. For someone with a PDD, Plaintiff has
functioned at a fairly high level. But, Dr. Lurie's conclusion that he functioned "at too high" a
level is not supported by the record.
It is true that Plaintiff managed to work for many years. But, Dr. Benbow's September
2012 letter makes clear that Plaintiff had significant problems at work. He wrote:
4
Moreover, the LTD Policy language refers to the DSM-IV-TR, not the DSM-5.
21 - FINDINGS OF FACT & CONCLUSIONS OF LAW
While in San Diego under my care, Mr. Leight was unable to go to work on a
regular basis, he had frequent absenteeism due to problems with extreme anxiety
and depression. Even when he did go to his office he was unable to engage in
productive work and would frequently become internally preoccupied or need to
go outside. He. . . . has been unable to work productively for quite some time but
he [had] a supportive employer who was surprisingly tolerant.
Id. at 182.
Other references in the record also suggest that Plaintiff had trouble coping at work. E.g.,
AR 546 (Sept. 5, 2007 chart note of Dr. Schiffman remarking on Plaintiff not completing tasks at
work); AR 538 (May 21, 2009 chart note of Dr. Schiffman noting Plaintiff's inability to
concentrate and get work done); AR 533 (Mar. 21, 2010 chart note of Dr. Schiffman noting
Plaintiff's plan to return to full-time work very soon). The record does not support a conclusion
that Plaintiff's employment was without problems attributable to anxiety and/or depression or
was possible absent accommodation from his employer.
And, while Dr. Lurie also noted Plaintiff's having had a girlfriend as an indication that he
functioned at too high a level to have an Asperger's diagnosis, the record, to the best of my
knowledge, contains references to a "girlfriend" twice in Plaintiff's life - once at the end of high
school and once in 2010. AR 551 (Dr. Stahl's June 2, 2010 report, noting Plaintiff's history that
he had a girlfriend after completing high school, and had recently lost a girlfriend to a breakup).
There is no information about how long these relationships were sustained, what they actually
consisted of (e,g., did they live together, manage a household or finances together, etc.), or
whether Plaintiff's disorder was a factor in the breakup. Without such information in the record,
Dr. Lurie's implicit conclusion that Plaintiff was capable of sustaining a long-term meaningful
romantic relationships is purely speculative.
I credit Dr. Babe's diagnosis of Asperger's and reject Dr. Lurie's conclusion that Plaintiff
22 - FINDINGS OF FACT & CONCLUSIONS OF LAW
did not have the disorder. It is undisputed that although both Dr. Babe and Dr. Lurie are boardcertified psychiatrists, Dr. Babe had a personal relationship with Plaintiff sustained over a period
of a couple of years. In contrast, Dr. Lurie never examined Plaintiff. Although a treating
physician's opinion is not afforded deference in an ERISA disability claim, Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 834 (2003), "this does not mean that a district court,
engaging in a de novo review, cannot evaluate and give appropriate weight to a treating
physician's conclusions, if it finds these opinions reliable and probative." Paese v. Hartford Life
& Acc. Ins. Co., 449 F.3d 435, 442 (2d Cir. 2006); see also Black & Decker, 538 U.S. at 832 ("it
may be true that treating physicians, as a rule, have a greater opportunity to know and observe the
patient as an individual") (internal quotation marks and alterations omitted).
Dr. Lurie's opinion is not supported because first, the fact that Asperger's is no longer its
own diagnosis does not mean that the condition ceases to exist and second, the record establishes
that Plaintiff has not functioned as well as Dr. Lurie suggests and thus, his conclusion that
Plaintiff's level of functioning is inconsistent with a diagnosis of Asperger's Disorder is not based
on the facts in the record. Dr Babe's opinion carries more weight because of his personal
relationship with Plaintiff and its consistency with earlier references to Plaintiff's problems at
work and with social anxiety.
II. Anxiety & Depression
Plaintiff contends that the record supports a finding that his anxiety and depression result
from his Asperger's Disorder. Defendant argues that the anxiety and depression exist
independently of the Asperger's diagnosis and are comorbid conditions. Defendant disputes that
Asperger's Disorder is a cause of Plaintiff's depression and anxiety or that the depression and
23 - FINDINGS OF FACT & CONCLUSIONS OF LAW
anxiety are symptoms of Asperger's Disorder.
Dr. Babe's treatment notes and opinion support Plaintiff's position. In April 2014, he
stated that Plaintiff's Asperger's "creates" complications such as depression and anxiety and that
Plaintiff's primary and fundamental diagnosis is Asperger's Disorder. AR 569. He also noted
that the primary diagnosis of Asperger's exacerbates and contributes to the anxiety and
depression. Id.
In December 2014, Dr. Babe stated again that Plaintiff's primary issue was Asperger's
disorder which had been present throughout his life. Id. at 527. Dr. Babe suggested that the
mental requirements of appearing socially normal combined with unpredictable environment
cause anxiety. Id. With changes in his job demands, Plaintiff had increased problems at work as
a result of his Asperger's disorder and these problems at work caused increased depression. Id.
Dr. Babe also remarked that evidence from Plaintiff's childhood shows he had difficulty with
social interactions, causing multiple sequelae. Id.
There are other references in the record to Plaintiff's anxiety or depression being caused
by his social adjustment problems attributable to Asperger's. E.g., id. at 177 (Dr. Babe noting in
September 2012 that Plaintiff had significant interpersonal issues which affected him in the
workplace and that he became depressed because of his inability to tolerate others' social
behavior); 182 (Dr. Benbow noting in September 2012 that social anxiety was a "prominent"
feature of Plaintiff's disorder).
In contrast to this evidence in the record, Dr. Neubauer's and Dr. Lurie's opinions support
Defendant's position. Dr. Neubauer initially rejected that Asperger's played a role in Plaintiff's
inability to work because it is a developmental disorder which is present throughout life cycles.
24 - FINDINGS OF FACT & CONCLUSIONS OF LAW
Id. at 173-75. She later explained that the depression and anxiety were, in her opinion, not
symptoms which were physiologically attributable to Asperger's and that Plaintiff's depression
and anxiety were caused by major depressive disorder and generalized anxiety disorder. Id. at
380. She concluded that Plaintiff's Asperger's would not be limiting in and of itself, but was
limiting for Plaintiff only because of his "comorbid depression and anxiety." Id. A few months
later, she adhered to this conclusion, noting that Plaintiff had been able to function in the work
setting for many years with his Asperger's Disorder and that the depression and anxiety which
were presently limiting him were comorbid conditions and did not result from his Asperger's. Id.
at 457-59.
In his report, Dr. Lurie relied on the DSM-IV to state that while depression and anxiety
occur in about twenty-percent of Asperger's patients, they are considered comorbid conditions,
not "biological extension[s]" of Asperger's. Id. at 592 (citing unspecified page or section of
"DSM-4 (DSM-IV)"). He rejected the conclusion that depression and anxiety were direct
manifestations of Asperger's. Id. at 594.
The DSM-IV-TR states that the "social deficits and restricted patterns of interest,
activities, and behavior are the source of considerable disability" for those with Asperger's.
DSM-IV-TR 80. It also explains that "[o]ften the social disability of individuals with the
disorder becomes more striking over time[,]" although by adolescence, "some individuals with
the disorder may learn to use areas of strength (e.g., rote verbal abilities) to compensate for areas
of weakness." Id. at 81. The DSM-IV-TR further explains that "Asperger's Disorder has been
reported to be associated with a number of other mental disorders, including Depressive
Disorders." Id. It recognizes that some individuals with Asperger's "experience heightened and
25 - FINDINGS OF FACT & CONCLUSIONS OF LAW
debilitating anxiety in social settings" similar to "Social Phobia or other Anxiety Disorders." Id.
at 83. The latter disorders, however, are not characterized by pervasive impairments in social
development. Id. In Asperger's, the "social deficits are quite severe and the preoccupations are
all-encompassing and interfere with the acquisition of basic skills." Id.
The DSM-IV-TR expressly recognizes that Asperger's is a contributing cause of
depression and anxiety. Id. at 81-82. It states that "feelings of social isolation and an increasing
capacity for self-awareness[] may contribute to the development of depression and anxiety in
adolescence and young adulthood." Id. at 82.
The DSM-IV-TR, which the LTD Policy uses to define mental illness and which was the
current version of the DSM at the time Plaintiff applied for disability, does not contain the
information Dr. Lurie cited and relied on regarding the percentage of Asperger's patients who
also suffer anxiety and depression and the comorbidity of those conditions. I also reviewed the
DSM-IV, the version cited by Dr. Lurie. In the section devoted to Asperger's Disorder, 299.80, I
found no mention of anxiety or depression, its percentage of occurrence in Asperger's patients, or
the fact that they are comorbid conditions rather than manifestations of the disorder. DSM-IV
75-77.
To be thorough, I reviewed the DSM-5 as well. That edition, as noted above, classifies
Asperger's Disorder as part of Autism Spectrum Disorder. It notes that adults who previously
developed compensation strategies for social challenges can still struggle in novel or unsupported
situations and "suffer from the effort and anxiety of consciously calculating what is socially
intuitive for most individuals." DSM-V 53. It explains that adults with the disorder "are prone
to anxiety and depression." Id. The current edition recognizes that some individuals are first
26 - FINDINGS OF FACT & CONCLUSIONS OF LAW
diagnosed with the disorder in adulthood and even those who have superior and language and
intellectual abilities and who have been better able to function independently, may still "remain
socially naive and vulnerable, have difficulties organizing practical demands without aid, and are
prone to anxiety and depression." Id. Finally, in a section discussing "comorbidity," the DSM-5
notes that many individuals with autism spectrum disorder have psychiatric symptoms that are
not part of the diagnostic criteria for the disorder. Id. at 58 (noting that about seventy percent of
those diagnosed with autism spectrum disorder may have one comorbid mental disorder, and
forty percent may have two comorbid mental disorders).
None of the versions of the DSM that I consulted contain the information reported by Dr.
Lurie. Accordingly, his discussion of what the DSM-IV states about Asperger's is
unsubstantiated. Instead, the DSM-IV-TR and the DSM-5 indicate that anxiety and depression
are common byproducts of individuals with Asperger's/Autism Spectrum Disorder. The manner
in which these DSM editions discuss the relationship between the disorder and anxiety and
depression indicates that anxiety and depression are symptoms of the disorder even though they
are not part of the diagnostic criteria.
While the DSM-5 uses the term "comorbid," and Dr. Neubauer and Dr. Lurie rely on that
term to conclude that Plaintiff's anxiety and depression exist independently of his Asperger's and
are not caused or exacerbated by Plaintiff's Asperger's, the definition of the term "comorbid" is
the subject of debate. For example, in one medical dictionary, it is defined as "[a] disease that
worsens or affects a primary disease." Taber's Cyclopedic Medical Dictionary 498 (21st ed.
2005). This definition does not mandate that the "disease" and "primary disease" are independent
of each other. In an online dictionary, the term is defined as: "pertaining to a disease or other
27 - FINDINGS OF FACT & CONCLUSIONS OF LAW
pathological process that occurs simultaneously with another."
http://medical-dictionary.thefreedictionary.com/comorbid (citing Miller-Keane Encyclopedia and
Dictionary of Medicine, Nursing, and Allied Health (7th ed. 2003)). Simultaneously is not
necessarily independently.
Other online resources offer differing definitions. Merriam-Webster online defines
"comorbid" as "existing simultaneously with and usually independently of another medical
condition," http://www.merriam-webster.com/dictionary/comorbid, while Dictionary.com offers
a definition of comorbid for medical conditions as "present simultaneously in a patient."
http://www.dictionary.com/browse/comorbid. Yet another online source notes that there are
various definitions of the term:
Comorbid, in medicine, refers to a disease or condition that occurs at the same
time as another illness. Dictionary definitions differ: Some say comorbidity refers
to two or more illnesses that occur simultaneously[;] [s]ome say it refers to one or
more illnesses that occur at the same time as a primary condition[;] [and] [s]ome
say it refers to two or more conditions that are present at the same time and
independently of each other.
http://www.healthcentral.com/bipolar/c/687619/157618/comorbid/.
In a 2009 article published in the Annals of Family Medicine, the authors stated that there
"is no agreement, however, on the meaning of the term [comorbidity]." Valderas, Jose M. et al.
"Defining Comorbidity: Implications for Understanding Health and Health Services." Annals of
Family Medicine 7.4 (2009): 357–363 (available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2713155/) (further explaining that "[a]ttempts to
study the impact of comorbidity are complicated by the lack of consensus about how to define
and measure the concept.").
Given the unclear definition of the term, the DSM-5's reference to "comorbid" conditions
28 - FINDINGS OF FACT & CONCLUSIONS OF LAW
does not mean the conditions must exist independently of each other. I am also not persuaded
that Dr. Neubauer's and Dr. Lurie's references to Plaintiff's anxiety and depression being
"comorbid" conditions establishes that they exist independently of Plaintiff's Asperger's Disorder.
The DSM-IV-TR and the DSM-5 support Dr. Babe's conclusion that Asperger's causes, creates,
or at least exacerbates Plaintiff's anxiety and depression. Accordingly, I agree with Plaintiff that
Plaintiff's Asperger's and depression and anxiety "cannot be uncoupled." Pl.'s Mot. 24.
III. Policy Provisions
The LTD Policy exempts PDDs from the definition of "Mental Illness." There is no
dispute that Asperger's Disorder is such a disorder. The twenty-four month "Special Conditions"
limitation on disability benefits applies only if the person has a mental illness in the first place.
Given that Plaintiff's Asperger's Disorder is not a mental illness under the LTD Policy, and given
my conclusion that the record establishes that Plaintiff's anxiety and depression are caused or
exacerbated by his Asperger's Disorder, those conditions are not subject to the "special
conditions" limitation because they are symptoms or manifestations of a PDD and are not mental
illnesses under the LTD Policy. Even though the LTD Policy includes mental illnesses related to
or caused by physical or biological factors as a "mental illness," that does not alter my
conclusion. The policy language expressly defines mental illness to exclude PDDs and thus, the
provision of the policy stating that "[a] mental illness, as so defined, may be related to or be
caused by physical or biological factors" does not apply at all. With a PDD, Plaintiff does not
have a mental illness in the first instance.
Even if Plaintiff's anxiety and depression are considered "mental illnesses," the "special
conditions" limitation would still not apply. If the person has the "stated condition" of a mental
29 - FINDINGS OF FACT & CONCLUSIONS OF LAW
illness, the special conditions twenty-four month exclusion does not apply if the person has
another condition which, absent the mental illness, continues to exist and limits activities such
that the person is disabled. Defendant's argument is that Plaintiff's Asperger's Disorder is
"another condition" which, absent the anxiety and depression, continues to exist but does not
limit his activities to the point of disability. The problem for Defendant is that the LTD Policy
either entitles Plaintiff to coverage or is ambiguous and is therefore construed to provide
coverage.
Given the relationship between Plaintiff's Asperger's Disorder and his anxiety and
depression, the LTD Policy cannot be applied to effectively erase the anxiety and depression.
That is, the "another condition" of Asperger's Disorder which is not subject to the "special
conditions" exclusion because it is not a mental illness, cannot be viewed in isolation when it
produces disabling symptoms which are mental illnesses. In a different situation, the LTD
Policy's "another condition" would clearly have no relationship to the limited special condition
and application of the limitation would be warranted. For example, a claimant with bipolar
disorder may also have vision problems which the claimant alleges are disabling. In analyzing
the special condition provision, the insurer could conclude first, that the claimant had a stated
condition of a mental illness. Then, second, if the medical record supported it, the insurer could
conclude that the claimant's vision problems did not, absent the bipolar disorder, limit the
claimant's activities to the point of disability and thus, the special conditions twenty-four month
limitation would apply.
But, when the "another condition" produces symptoms which cause the disabling
limitations, the LTD Policy's special conditions language, which is directed at independent
30 - FINDINGS OF FACT & CONCLUSIONS OF LAW
"conditions," does not apply. Alternatively, the LTD Policy is ambiguous in situations when a
PDD manifests as a mental illness. In a similar case, Magistrate Judge Coffin concluded that a
policy was ambiguous when the claimant's migraines caused depression. Kitterman v. Standard
Ins. Co., No. 09-cv-6294-TC, 2011 WL 1541310, at **1-4 (D. Or. Apr. 21, 2011). The policy at
issue limited payment of long-term disability benefits to twenty-four months if the disability was
"caused or contributed to by a Mental Disorder." Id. at *1. "Mental Disorder" meant a "mental,
emotional or behavioral disorder." Id. The defendant argued that the plaintiff's depression was
independently disabling and that his migraines were a separate long-standing condition that was
not disabling. Id.
Judge Coffin concluded that contrary to the defendant's factual assertion, the record
established that the plaintiff's migraines were a cause of his depression. Id. at *2. With that
determination, he then concluded that the policy limitation was ambiguous given that the
plaintiff's disability was caused by both mental and physical health problems, or a "mixed
condition." Id. at **2-5. Relying on earlier Ninth Circuit cases which addressed the application
of similarly limiting provisions to disabilities produced by related physical and mental illnesses,
Judge Coffin concluded the policy was ambiguous. Id. (discussing and citing Lang, 125 F.3d at
799; Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir. 1993)).
Although Plaintiff here does not have a physical illness, because the Asperger's Disorder
is exempt from the definition of "mental illness," it is akin to physical illnesses which are
covered under the LTD Policy. As a result, the discussions in Kitterman and the cases it cites are
instructive regarding the ambiguity of similar policy provisions when those provisions are
applied to "mixed-condition" disabilities.
31 - FINDINGS OF FACT & CONCLUSIONS OF LAW
Defendant argues that these cases are distinguishable because unlike the policies in those
cases, the LTD Policy here specifically defines "mental illness" as a mental illness related to or
caused by physical or biological factors. This might help Defendant if, as in Kitterman,
Plaintiff's anxiety and depression were caused by a physical or biological factor. Here, the LTD
Policy does not define "physical or biological factor." And, given that Asperger's and now
Autistic Spectrum Disorder are conditions diagnosable under the DSM "of Mental Disorders,"
Asperger's is not a "physical or biological factor." Further, as noted above, because PDDs are
specifically exempted from the definition of mental illness, Plaintiff's disorder is not subject to
the "related to or caused by physical or biological factors" policy language in the first instance.
Thus, just like the policies at issue in Kitterman and the cases it cites, the LTD Policy here is
ambiguous because it does not clearly exclude a PDD which produces anxiety and depression
from the "special conditions" twenty-four month limitation. As such, the doctrine of contra
proferentum which provides that "ambiguities in insurance contracts must be construed against
the insurer," Sanders v. CNA Grp. Life Assur. Co., 322 F. Supp. 2d 1142, 1145 n.2 (D. Or.
2004), applies in favor of coverage for Plaintiff. See Kunin v. Benefit Trust Life Ins. Co., 910
F.2d 534, 539–40 (9th Cir. 1990) (rule of contra proferentum applies to ERISA insurance
polices); see also Sanders, 322 F. Supp. at 1145-46 (explaining that the doctrine does not apply
to a court's abuse of discretion review of an ERISA plan's determination but it does apply to a de
novo review).
CONCLUSION
Based on the Administrative Record, the Court construes the motions for summary
judgment [41, 42] as Trial Memoranda in connection with a bench trial. For the reasons
32 - FINDINGS OF FACT & CONCLUSIONS OF LAW
explained herein, the twenty-four month limitation on disability benefits in the LTD Policy does
not apply. As a result, I find in favor of Plaintiff. Plaintiff shall prepare an appropriate Judgment
consistent with these Findings & Conclusions, and after conferring with Defendant, shall submit
it to the Court for signature within 14 days of the date below.
IT IS SO ORDERED.
Dated this
day of
Marco A. Hernandez
United States District Judge
33 - FINDINGS OF FACT & CONCLUSIONS OF LAW
, 2016
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