Bigham v. Liberty Life Assurance Company of Boston

Filing 31

ORDER by Judge Ricardo S Martinez denying defendant's 24 Motion for Judgment; granting plaintiff's 10 Motion for Judgment. Court remands to Liberty Life the issue of extending benefits to plaintiff beyond the 24-month period prescribed for own occupation benefits under the LTD Plan. (PM)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9
10
11
12
13
14
15
16

Case No. C15-349RSM

ROSE BIGHAM,
Plaintiff,
v.
LIBERTY LIFE ASSURANCE COMPANY
OF BOSTON,

ORDER GRANTING PLAINTIFF’S
MOTION FOR JUDGMENT UNDER
FRCP 52 AND DENYING
DEFENDANT’S CROSS MOTION FOR
JUDGMENT UNDER FRCP 52

Defendant.
I.

INTRODUCTION

17
18

This matter comes before the Court on Cross Motions filed by Plaintiff Rose Bigham

19

and Defendant Liberty Life Assurance Company Of Boston (“Liberty Life”), seeking a final

20

judgment from this Court under Federal Rule of Civil Procedure 52 based on an administrative

21

record created in an underlying Employee Retirement Income Security Act ("ERISA") dispute.

22
23

Dkt. ##10 and 24. Plaintiff brings this action under ERISA, 29 U.S.C. § 1001 et seq. to recover

24

long-term disability (“LTD”) benefits under the Liberty Life Long-Term Disability Plan (“LTD

25

Plan”). Ms. Bigham, who worked as a Security Technical Program Manager for Amazon, LLC

26

(“Amazon”), argues that she is disabled under the terms of the LTD Plan due to “chronic

27

intractable pain, fibromyalgia, seronegative spondyloarthropathy, cervical and lumbar

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 1

1

degenerative disc disease,” and related conditions. Dkt. #10 at 1-2. Liberty Life argues that

2

medical evidence and post-diagnosis surveillance do not establish that Ms. Bigham is disabled

3

or otherwise unable to perform her own occupation. For the reasons set forth below, the Court

4

concludes that Ms. Bigham is entitled to long-term disability benefits under the terms of the

5
6
7

LTD Plan. The Court remands to Liberty Life the issue of extending benefits beyond the 24month period prescribed for “own occupation” benefits.
II.

8
9
10

PROCEDURAL ISSUES

Before turning to the merits of the parties' arguments, the Court must determine whether
it is appropriate to resolve this case on the parties' cross motions for judgment under Rule 52

11
12

(Dkt. ## 10 and 24) as opposed to summary judgment under Rule 56. The answer depends on

13

what standard of review the court applies. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

14

101, 109, 109 S. Ct. 948 (1989) (“ERISA does not set out the appropriate standard of review

15

for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations.”). The parties

16

here have simplified the matter by stipulating to de novo review. See Dkt. #23 at 12. The court

17
18

accepts the parties’ stipulation and reviews the record de novo. See Rorabaugh v. Cont'l Cas.

19

Co., 321 Fed. App'x 708, 709 (9th Cir. 2009) (court may accept parties’ stipulation to de novo

20

review).

21

Where review is under the de novo standard, the Ninth Circuit has not definitively

22
23

stated the appropriate vehicle for resolution of an ERISA benefits claim. The de novo standard

24

requires the court to make findings of fact and weigh the evidence. See Walker v. Am. Home

25

Shield Long Term Disability Plan, 180 F.3d 1065, 1069 (9th Cir. 1999) (de novo review applies

26

to plan administrator's factual findings as well as plan interpretation). Typically, a request to

27

reach judgment prior to trial would be made under a Rule 56 motion for summary judgment,

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 2

1

however under such a motion the court is forbidden to make factual findings or weigh

2

evidence. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.

3

1987). Instead, the parties here propose the Court conduct a trial on the administrative record

4

under Rule 52.

5
6

This procedure is outlined in Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th

7

Cir. 1999) (noting that “the district court may try the case on the record that the administrator

8

had before it”). In a trial on the administrative record:

9
10
11
12
13

The 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. Thus, when applying the de novo standard in an ERISA benefits case, a trial on the

14
15

administrative record, which permits the court to make factual findings, evaluate credibility,

16

and weigh evidence, appears to be the appropriate proceeding to resolve the dispute. See Casey

17

v. Uddeholm Corp., 32 F.3d 1094, 1099 (7th Cir. 1994) (on de novo review of an ERISA

18

benefits claim, the “appropriate proceeding[] . . . is a bench trial and not the disposition of a

19

summary judgment motion”); Lee v. Kaiser Found. Health Plan Long Term Disability Plan,

20
21

812 F. Supp. 2d 1027, 1032 (N.D. Cal. 2011) (“De novo review on ERISA benefits claims is

22

typically conducted as a bench trial under Rule 52”); but see Orndorf v. Paul Revere Life Ins.

23

Co., 404 F.3d 510, 517 (1st Cir. 2005) (“When there is no dispute over plan interpretation, the

24

use of summary judgment . . . is proper regardless of whether our review of the ERISA decision

25
26

maker's decision is de novo or deferential.”).

27
28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 3

Given the above law, and the clear intent of the parties, the Court will resolve the

1
2

parties’ dispute in a bench trial on the administrative record rather than on summary judgment.

3

Therefore, the court issues the following findings and conclusions, pursuant to Rule 52.

4

III.

FINDINGS OF FACT

5
1. Plaintiff Rose Bigham was employed by Amazon as an “AWS Security Technical

6

Program Manager II”. AR2389.1 Ms. Bigham’s position required “strong problem-

7
8

solving skills, excellent communication skills, the ability to influence people from

9

customers to managers,” as well as “exemplary project management, critical thinking ...

10

and a passion for creating reliable and maintainable systems.” Id. It required her to be

11
“extremely good at multi-tasking, innovative, creative, self-directed and a great team

12
13

player” and to be able to “drive continuous process improvement, and collaborate

14

effectively with aggressive cross-functional business and software development teams

15

to solve problems and implement new solutions[.]” Id. This position also required Ms.

16

Bigham to “complete complicated mathematical equations and assist in the protection

17
of information.”

18
19

2. Ms. Bigham was offered Short Term Disability (“STD”) and Long Term Disability

20

(“LTD”) benefits by her employer Amazon through plans administered by Liberty Life.

21

See AR001827-AR001911 (STD Plan); AR000001-45 (LTD Plan); AR000046

22
(Amazon’s application for Liberty Life STD and LTD coverage); AR000047 (claim

23
24

sheet for Rosemary Bigham indicating LTD and STD benefits eligible as of August 1,

25

2011). As a regular full time employee working a minimum of 30 hours per week, Ms.

26

Bigham was eligible for STD and LTD benefits. AR001829; AR00003.

27
28

1

The Court will use the same citation system as the parties. “AR” refers to the administrative record submitted by
Plaintiff and available at Dkt. ## 11-16.
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 4

1

3. Under the STD Plan, benefits are awarded based on an employee meeting the following

2

definition of disability: an employee “as a result of Injury or Sickness [is] unable to

3

perform the Material and Substantial Duties of [his/her] Own Job.” AR01832. These

4

benefits are only available for a short term: 25 weeks. AR001830. “Sickness” is

5
6

defined as “illness, disease, pregnancy or complications of pregnancy.” AR001839.

7

“Material and Substantial Duties” is defined as “responsibilities that are normally

8

required to perform your Own Job and cannot be reasonably eliminated or modified.”

9

AR001835.

10

4. Under the LTD Plan, benefits are awarded beyond the 25-week window. Under this

11
12

plan, “Disabled” is defined as when the employee “as a result of Injury or Sickness, is

13

unable to perform the Material and Substantial Duties of his Own Occupation.”

14

AR00008. “Sickness” is defined as “illness, disease, pregnancy or complications of

15

pregnancy.”

16

AR00015.

The Plan defines “Material and Substantial Duties” as

“responsibilities that are normally required to perform the Covered Person’s Own

17
18
19
20
21

Occupation, or any other occupation, and cannot be reasonably eliminated or modified.”
AR00011.
5. LTD Plan benefits are limited to 24 months unless the employee can show that she “is
unable to perform, with reasonable continuity, the Material and Substantial Duties of

22
23

Any Occupation.”

AR00004; AR00008.

“Any Occupation” is defined as “any

24

occupation that the [employee] is or becomes reasonably fitted by training, education,

25

experience, age, physical and mental capacity.” AR00007.

26
27

6. Records indicate that Ms. Bigham has suffered from the chronic conditions of
seronegative spondyloarthropathy, fibromyalgia, and cervical and lumbar degenerative

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 5

1

disc disease prior to 2013. See AR001994-97; AR001033; AR001205; AR001363;

2

AR1379. In January of 2013, Ms. Bigham suffered from an increase in her symptoms

3

from these chronic conditions, and felt that she could no longer continue working.

4

AR002332. Ms. Bigham applied for STD benefits, which Liberty Life granted. See

5
6
7

AR002336. After several weeks of leave, Ms. Bigham attempted to return to work on
March 10, 2013, at which point Liberty Life terminated her STD benefits. Id.

8

7. Ms. Bigham again stopped work on April 11, 2013, and reapplied for STD benefits,

9

which Liberty Life granted on April 15, 2013. AR002454. In granting these benefits,

10

Liberty Life specifically found that Ms. Bigham had an “inability to perform [her] job”

11
12

and that there was “medically supported disability” as of April 12, 2013. AR002454.

13

8. On July 13, 2013, Liberty Life terminated Ms. Bigham’s STD benefits. AR002412.

14

9. On September 18, 2013, Ms. Bigham’s rheumatologist, Richard Neiman, M.D., stated

15

in a declaration that he had diagnosed Ms. Bigham with fibromyalgia since 2009.

16

AR001994. He stated that “Ms. Bigham’s fibromyalgia causes her to experience many

17
18

of the common symptoms of that disease including persistent widespread

19

musculoskeletal pain, muscle stiffness, severe fatigue, disturbed sleep and disruption of

20

cognitive function.… [including] problems with memory, learning new items, word

21

searching and communicating effectively.” AR001995. Dr. Neiman stated that Ms.

22
23
24

Bigham’s “pain is so severe as to require regular doses of morphine throughout the
day.” Id.

25

10. On September 20, 2013, Ms. Bigham’s primary care physician, Teresa Girolami, M.D.,

26

stated in a letter eventually submitted to Liberty Life that Ms. Bigham “cannot sit or

27

stand for long periods of time, she finds it very difficult to look at a computer screen,

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 6

1

her ability to concentrate on everyday tasks has been significantly reduced, let alone be

2

in a meeting with her peers or supervisors.

3

headaches and her muscle and joint pain is exacerbated. She needs to lie down to

4

She experiences visual changes and

recover and be removed from the situation.” AR002390.

5
6

11. On October 23, 2013, Ms. Bigham’s pain specialist, David Goodman, M.D., stated in a

7

declaration that “[o]ver the past year, [Ms. Bigham] has noted marked progression of

8

her pain and fatigue. This is despite maximum medical therapy which includes Enbrel a

9

potent anti-inflammatory medication, opiates, muscle relaxants as well as… physical

10

therapy.” AR002155. Dr. Goodman went on to state that, in his professional opinion as

11
12

a pain management specialist, he had “no reason to doubt or disbelieve Ms. Bigham’s

13

description of her pain and disability,” and that Ms. Bigham’s “inflammation and

14

degeneration in her spine and right hip is certainly sufficient to cause the kind of pain

15

she describes.” AR002156.

16

12. On December 18, 2013, Liberty Life advised Ms. Bigham that its benefit termination

17
18

had been incorrect, and reinstated STD benefits through October 10, 2013. AR001749.

19

By extending STD benefits to this date, Liberty Life effectively paid the maximum

20

benefits available under the STD Plan. See Dkt. #24 at 3.

21

13. Ms. Bigham applied for LTD benefits in early December 2013, and Liberty Life granted

22
23
24

these benefits with a reservation of rights on February 25, 2014.

AR001558-59;

AR001786.

25

14. In 2014, Liberty life conducted a review of Ms. Bigham’s medical records as well as

26

letters and declarations from Ms. Bigham and her doctors concerning her conditions.

27

On January 13, 2014, Ms. Bigham reported: “I now suffer from severe, debilitating pain

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 7

1

and need pain medications to manage it… The medical conditions while I have been

2

diagnosed with – and the medication to manage the symptoms – cause “brain fog”

3

which has become increasingly difficult. Memory, language, ability to learn have all

4

become incredibly challenging areas of deficit. In addition, the constant pain causes

5
6

unrelenting fatigue which results in unpredictable episodes of sudden sleep – even while

7

driving! I can no longer drive safely at all times.” AR001679. Ms. Bigham reported

8

that she could sit for 20 minutes at a time, stand for 5, and walk for 10-15 minutes.

9

AR001677. When asked what she could do in a day, Ms. Bigham reported that she

10

could sit a total of 3-5 hours, stand for a total of 5-10 minutes, and walk sometimes “not

11
12

at all” and sometimes “up to 20-30 minutes.” AR001677.

13

15. Ms. Bigham’s doctors again supported her reported level of impairment. For example,

14

Dr. Richard Neiman reported on January 14, 2014: “Ms. Bigham’s fibromyalgia and AS

15

cause her persistent widespread musculoskeletal pain, muscle stiffness, severe and

16

debilitating fatigue, disturbed sleep and disruption of cognitive function. She

17
18
19
20
21

experiences problems with memory, learning new items, word searching and
communicating effectively. She is stiff and feels poorly all the time.” AR001690.
16. Liberty Life hired an investigative agency to conduct surveillance on Ms. Bigham “over
a seven day period from December 31 through January 2, 2015 and February 3 through

22
23

6, 2014.” AR000557. This surveillance appeared to show Ms. Bigham driving short

24

distances, bending over and lifting her small dog, walking along a trail for a short

25

period of time, smiling and conversing with a friend, and lifting and moving an empty

26

trash bin. See Dkt. ## 17; 19 (Surveillance Video CD submitted to Court).

27
28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 8

1

17. Liberty Life also forwarded all of the information in its claim file to consulting

2

physicians for panel review. Dr. Phillipe Chemaly, specializing in Physical Medicine

3

and Rehabilitation, opined that plaintiff did indeed have the conditions claimed and

4

agreed that she had pain. AR00145-AR000163. Dr. Mark Burns, a rheumatologist,

5
6

confirmed that plaintiff met the criteria for fibromyalgia, and that her medical record

7

did support restrictions. AR00165-AR000173. Dr. Burns also conducted a peer-to-peer

8

discussion with plaintiff’s rheumatologist, Dr. Park. Dr. Burns reported that Dr. Park

9

“noted that her assessment of the cognitive problems the claimant has been having is

10

based on self-reported symptoms. There are no physical findings that would support

11
12
13

impairment. … She does not feel the claimant can work because she has good days and
bad.” AR00170-71.

14

18. On July 11, 2014, Liberty Life terminated Ms. Bigham’s benefits. AR000555. Ms.

15

Bigham appealed this decision, and Liberty life denied that appeal on February 3, 2015.

16

AR000127-AR000131. This litigation followed.

17
18

IV.

CONCLUSIONS OF LAW

19

A. Standard under ERISA

20

1. ERISA provides that a qualifying ERISA plan “participant” may bring a civil action in

21

federal court “to recover benefits due to him under the terms of his plan, to enforce his

22
23

rights under the terms of the plan, or to clarify his rights to future benefits under the

24

terms of the plan[.]” 29 U.S.C. § 1132(a)(1)(B); Metro. Life Ins. Co. v. Glenn, 554

25

U.S. 105, 108, 128 S. Ct. 2343, 171 L. Ed. 2d 299 (2008) (ERISA “permits a person

26

denied benefits under an employee benefit plan to challenge that denial in federal

27

court.”). The Court finds that Plaintiff is a qualified participant.

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 9

1

2. As discussed above, ERISA does not set forth the appropriate standard of review for

2

actions challenging benefit eligibility determinations. Firestone, 489 U.S. at 109. The

3

parties, however, have stipulated to de novo review. See Dkt. #23 at 12. The Court

4

accepts the parties' stipulation and reviews the record de novo. See Rorabaugh, 321 F.

5
6

App'x at 709 (court may accept parties stipulation to de novo review). “When

7

conducting a de novo review of the record, the court does not give deference to the

8

claim administrator's decision, but rather determines in the first instance if the claimant

9

has adequately established that he or she is disabled under the terms of the plan.” Muniz

10

v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1295-96 (9th Cir. 2010).

The

11
12

administrator’s “evaluation of the evidence is not accorded any deference or

13

presumption of correctness.” Perryman v Provident Life & Acc. Ins. Co., 690 F Supp

14

2d 917, 942 (D. Ariz. 2010).

15

admissible evidence, the court “evaluates the persuasiveness of each party's case, which

16

In reviewing the administrative record and other

necessarily entails making reasonable inferences where appropriate.” Oldoerp v. Wells

17
18

Fargo & Company Long Term Disability Plan, 12 F.Supp.3d 1237, 1251 (N.D. Cal.

19

2014) (citing Schramm v. CNA Fin. Corp. Insured Grp. Ben. Program, 718 F. Supp. 2d

20

1151, 1162 (N.D. Cal. 2010)).

21

3. When a district court “reviews a plan administrator's decision under the de novo

22
23

standard of review, the burden of proof is placed on the claimant.” Id. at 1294; see also

24

Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998) (the

25

claimant “bears the burden of proving his entitlement to contractual benefits”).

26

//

27

//

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 10

1

B. Ms. Bigham is Disabled under the Plan

2

4. At issue is whether Ms. Bigham’s condition qualifies as a disability under the LTD

3

Plan. The LTD Plan does not require Ms. Bigham to be completely incapacitated. The

4

Plan does not discuss intermittent disability or provide a threshold frequency of

5
6

disabling symptoms. Instead, Ms. Bigham will qualify as disabled under the Plan if she

7

can establish that she is unable to perform, as a result of illness or disease, the

8

responsibilities that she is normally required to perform in her occupation, which cannot

9

otherwise be reasonably eliminated or modified. AR000008; AR000015; AR000011.

10

The parties do not dispute that Ms. Bigham has met the other requirements of the Plan.

11
12

5. It is clear from the record that Ms. Bigham’s job required her to be able to focus her

13

thoughts and interact with others for long periods of time on a daily basis. Doctors who

14

personally examined Ms. Bigham, including Dr. Neiman, Dr. Girolami, and Dr.

15

Goodman, concluded that Ms. Bigham’s condition made it impossible to for her to

16

reliably perform this essential job function. See AR001690; AR001995-96; AR002380;

17
18

AR002155. This evidence alone is persuasive that Ms. Bigham is disabled under the

19

Plan. See Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676-79 (9th Cir.

20

2011) (evidence showing that the doctors who personally examined the claimant

21

concluded that he was disabled, even though insurance company's non-examining

22
23
24

physicians found otherwise, supported finding that the claimant was disabled under
terms of the plan).

25

6. Liberty Life contends that Ms. Bigham’s symptoms are purely subjective, and cites to

26

Jordan v. Northrup Grumman, 370 F.3d 869 (9th Cir 2004) for the proposition that it is

27

“appropriate for an administrator to require objective evidence of functional

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 11

1

restrictions.” Dkt. #24 at 12. However, this citation does not convince the Court that

2

purely subjective symptoms doom Ms. Bigham’s claim for two reasons. First, unlike

3

the Court here, the court in Jordan was reviewing the plan administrator’s decision for

4

abuse of discretion, not de novo review. The Court here is not required to grant any

5
6

deference to Liberty Life’s previous decisions. Second, the court in Jordan did not rule

7

that subjective symptoms are insufficient evidence of disability, it found that the

8

plaintiff in that case failed to provide sufficient medical documentation of functional

9

restrictions:

10
11
12
13
14
15
16
17
18
19

“…the administrator asked for evidence that the fibromyalgia she
suffered from disabled her from working at her job. MetLife's
letter to her doctors acknowledged their diagnosis of fibromyalgia,
and asked ‘based on her diagnosis . . . what prevented your patient
from performing her occupation’ and also asked ;what objective
findings prevented her from performing sedentary work.’ If
Jordan's physicians believed that the effects of her fibromyalgia
disabled her from performing her occupation, those medical
experts could have responded to the administrator's request for
further information with at least some answer explaining why the
illness prevented Jordan from performing her work as a secretary.
However, Drs. Reddy and O'Connor merely reiterated their
conclusory findings of disability. They did not answer the quite
reasonable inquiry of the administrator.”
Jordan, 370 F.3d at 877 (emphasis in original). Here, Ms. Bigham’s doctors did

20
21

provide their medical opinions that her condition prevented her from performing her

22

occupation.

23

subjective symptoms have been found in previous cases to be valuable evidence for a

24

See AR001690; AR001995-96; AR002380; AR002155.

Furthermore,

disability claim. See Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 678

25
26

(9th Cir. 2011) (a disability insurer cannot “condition coverage on proof by objective

27

indicators such as blood tests where the condition is recognized yet no such proof is

28

possible”); Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 872ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 12

1

73 (9th Cir. 2008); Miles v. Principal Life Ins. Co., 720 F.3d 472, 486 (2d Cir. 2013)

2

(“…[S]ubjective complaints of disabling conditions are not merely evidence of a

3

disability, but are an important factor to be considered in determining disability.”). As

4

stated above, it is clear that Ms. Bigham’s symptoms prevent her from doing her job.

5
6
7

Liberty Life provides no credible reason to disbelieve the reports of Ms. Bigham or her
medical providers regarding her symptoms and their disabling consequences.

8

7. Liberty Life argues that the surveillance footage is “inconsistent” with Ms. Bigham’s

9

self-reporting of her pain physical capabilities, and calls into question whether “plaintiff

10

in fact does suffer from debilitating pain and fatigue sufficient to preclude her from

11
12

performing her own occupation...” Dkt. #24 at 12-16 (emphasis in original). Liberty

13

Life acknowledges that Ms. Bigham’s medical records indicate that she has good days

14

and bad days, but argues that “one would expect to see some evidence of pain or fatigue

15

in plaintiff’s behavior.... [in] the surveillance video…” Id. at 13. Liberty Life argues

16

that:

17
18
19
20
21

Despite her claimed limitations, plaintiff has walked and stood for
a total of 42 minutes without any sign of discomfort, let alone
chronic and disabling pain. At no time does plaintiff bend carefully
or walk gingerly. She does not grimace or limp. As she walks next
to her friend in the dog park it is impossible to tell which
individual is fine and which suffers “intractable pain” and
“debilitating fatigue.”

22
23

Id. After reviewing the surveillance footage and the rest of the record, the Court

24

disagrees with Liberty Life’s analysis and conclusions. The surveillance footage neither

25

proves nor disproves that Ms. Bigham’s documented chronic intractable pain,

26

fibromyalgia, seronegative spondyloarthropathy, cervical and lumbar degenerative disc

27

disease, and related conditions prevent her from doing her job. Ms. Bigham has never

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 13

1

claimed that she cannot walk or lift a small dog. Indeed, Liberty Life acknowledges

2

that “Plaintiff’s doctors reviewed the surveillance and each submitted a declaration that

3

nothing in the video was inconsistent with plaintiff’s self-reports.” Id. at 15. Just

4

because Ms. Bigham did not grimace or limp in this limited window of surveillance

5
6

does not mean that she is not experiencing significant pain at the time, or more

7

importantly, at other times, and frequently. The surveillance footage does not show Ms.

8

Bigham in a workplace setting, or performing any of the complex tasks associated with

9

her prior position at Amazon. Nor does it catch Ms. Bigham in a lie, as implied by

10

Liberty Life in their briefing at Dkt. #24 at 14 (“This is clearly inconsistent with

11
12

plaintiff’s assertion barely two weeks later…”). Ms. Bigham’s estimates of her ability

13

to walk 20-30 minutes and stand 5-10 minutes in a day do not deviate substantially from

14

her abilities caught on film—Ms. Bigham is not seen jogging, or walking great

15

distances without pause. Any inconsistency with her estimates is simply insufficient to

16

call into question her credibility and the credibility of her medical providers.

17
18

8. Given the LTD Plan’s definitions of “Disabled,” “Sickness,” and “Material and

19

Substantial Duties,” listed in the Findings of Fact, and based solely on the

20

administrative record, the Court finds that Ms. Bigham was disabled within the meaning

21

of the Plan at least during the time period in question—from her first application for

22
23

STD benefits through end of the administrative record. Without a change in Ms.

24

Bigham’s medical condition, there is no reason to conclude that she will not continue to

25

be disabled as defined in the LTD Plan.

26
27

9. The Court does not have sufficient evidence or argument before it determine whether
Ms. Bigham is “unable to perform, with reasonable continuity, the Material and

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 14

1

Substantial Duties of…. any occupation that the [employee] is or becomes reasonably

2

fitted by training, education, experience, age, physical and mental capacity.”

3

AR000007-08. Ms. Bigham refuses to address this issue, finding it “not relevant here.”

4

Dkt. #10 at 3. Liberty Life asserts that Ms. Bigham’s 24-month LTD Plan coverage

5
6

ends on October 8, 2015, after which benefits will only be awarded if she meets this

7

“any occupation” standard. Dkt. #23 at 22. Liberty Life argues that, because it has not

8

had the opportunity to review Ms. Bigham’s claim under this standard, the Court should

9

not award benefits beyond 24 months and instead remand to Liberty Life for further

10

consideration. Id. The Court agrees and will therefore remand to Liberty Life the issue

11
12
13

of extending benefits to Ms. Bigham beyond the 24-month period prescribed for “own
occupation” benefits under the Plan.

14

10. A district court may award prejudgment interest in ERISA cases to compensate a

15

plaintiff for the loss she incurred as a result of the defendant's nonpayment of benefits.

16

Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 988 (9th Cir.2001). Whether to

17
18

award prejudgment interest “is a question of fairness, lying within the court's sound

19

discretion, to be answered by balancing the equities.” Shaw v. Int'l Ass'n of Machinists

20

& Aerospace Workers Pension Plan, 750 F.2d 1458, 1465 (9th Cir.1985) (quoting

21

Wessel v. Buhler, 437 F.2d 279, 284 (9th Cir.1971)). Generally, “the interest rate

22
23

prescribed for post-judgment interest under 28 U.S.C. § 1961 is appropriate for fixing

24

the rate of pre-judgment interest unless the trial judge finds, on substantial evidence,

25

that the equities of that particular case require a different rate.” Rabbat, 894 F. Supp. 2d

26

at 1323 (quoting Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620, 628

27

(9th Cir. 2007)).

28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 15

1

11. Plaintiff is entitled to receive long-term disability benefits from the beginning of her

2

eligibility through the 24-month period prescribed in the Plan, to recover pre-judgment

3

interest on those unpaid benefits consistent with the rate prescribed for post-judgment

4

interest under 28 U.S.C. § 1961, and to recover her attorney’s fees and costs pursuant to

5
6

29 U.S.C. § 1132(g)(1).
V.

7
8
9
10

CONCLUSION

Having reviewed Plaintiff’s and Defendant’s cross motions, the responses in opposition
thereto and replies in support thereof, the Court hereby FINDS and ORDERS:
1) Defendant’s Motion for Judgment under Federal Rule of Civil Procedure 52 (Dkt.

11
12

#24) is DENIED.

13

2) Plaintiff’s Motion for Judgment under Federal Rule of Civil Procedure 52 (Dkt.

14

#10) is GRANTED. Plaintiff is entitled to receive long-term disability benefits

15

from the beginning of her eligibility through the 24-month period prescribed in the

16

LTD Plan, to recover pre-judgment interest on those unpaid benefits, and to recover

17
18

attorney’s fees and costs. However, the Court REMANDS to Liberty Life the issue

19

of extending benefits to Ms. Bigham beyond the 24-month period prescribed for

20

own occupation benefits under the LTD Plan.

21

3) No later than ten (10) days from the date of this Order, Plaintiff shall file a Motion

22
23

for Attorney’s Fees, noting it for consideration pursuant to this Court’s Local Rules.

24

The motion shall be supported by documentary evidence reflecting the amount of

25

fees sought, and shall include argument as to the authority upon which such fees

26

may be granted and why such fees are reasonable.

27
28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 16

Defendant shall file any

1

Response in accordance with the Local Rules, and Plaintiff may file a Reply in

2

accordance with the same.

3

4) This matter is now CLOSED.

4
5
6

DATED this 11th day of December 2015.

7
8
9
10

A

RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT
UNDER FRCP 52 AND DENYING DEFENDANT’S CROSS
MOTION FOR JUDGMENT UNDER FRCP 52 - 17