Morgan v. Hartford Life and Accident Insurance Company

Filing 27

ORDER denying 20 Motion for Summary Judgment by Judge Benjamin H. Settle.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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4 TRACIE D. MORGAN,
Plaintiff,

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v.

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HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,

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CASE NO. C16-5183 BHS
ORDER DENYING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

Defendant.

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This matter comes before the Court on Defendant Hartford Life and Accident
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Insurance Company’s (“Hartford”) motion for summary judgment. Dkt. 20. The Court,
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having considered the pleadings filed in support of and in opposition to the motion and
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the remainder of the file, denies the motion for the reasons stated herein.
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I. PROCEDURAL HISTORY
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On March 9, 2016, Tracie Morgan (“Morgan”) filed a complaint for long-term
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disability benefits against Hartford. Dkt. 1. Morgan’s sole claim is wrongful denial of
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benefits under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001,
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et seq. (“ERISA”). Id.
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On November 16, 2016, Hartford moved for summary judgment. Dkt. 20. On
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December 5, 2016, Morgan responded. Dkt. 22. On December 9, 2016, Hartford replied.
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Dkt. 23.
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ORDER - 1

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II. FACTUAL BACKGROUND
Morgan filed a claim with Hartford for long-term disability benefits claiming a

3 disability date of April 8, 2015. AR000082. 1 To support her claim, Morgan presented
4 records from Drs. Cornelia Moynihan, ND, and Larry Stonesifer, MD. See AR000242–
5 47, AR000254–57, AR000264–68. On May 11, 2015, Dr. Moynihan indicated that
6 Morgan was suffering chronic fatigue from infectious mononucleosis or a “flare up of
7 EBV [Epstein-Barr Virus].” AR000242. However, follow-up serologies revealed results
8 indicating former infection with no current illness. AR000244–46. Morgan continued to
9 suffer symptoms of fatigue and an inability to concentrate. AR000255. On June 18, 2015,
10 Dr. Moynihan referred Morgan to Dr. Stonesifer for an endocrine evaluation. AR000253.
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Morgan continued to visit Dr. Moynihan for follow-up appointments. On June 26,

12 2015, Dr. Moynihan authorized Morgan to work four hours per day. AR000343. On July
13 1, 2015, Dr. Moynihan increased Morgan’s work capacity to 4.5 hours each day.
14 AR000347. On July 22, 2015, Dr. Moynihan noted that Morgan continued to suffer
15 fatigue and added nausea. AR000352.
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On July 28, 2015, Morgan met with Dr. Stonesifer. AR000265. Dr. Stonesifer

17 assessed Morgan with chronic fatigue and possible reactive hypoglycemia. Id. Dr.
18 Stonesifer ordered additional tests, including an insulin tolerance test. Id. On July 29,
19 2015, Dr. Moynihan ordered that Morgan not work from July 30, 2015, through August
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The Court adopts the same format for citations used by the parties to reference evidence
contained in the plan administrator’s record. See Dkt. 20 at 2; Dkt. 22 at 2. The record is
22 available on the electronic docket at Dkts. 21-1, 21-2, and 21-3.

ORDER - 2

1 21, 2015. AR000374. In the same note, Dr. Moynihan stated that Morgan could return to
2 work for 3 hours per day beginning on August 24, 2015. Id.
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On August 19, 2015, Morgan returned for a follow-up with Dr. Stonesifer.

4 AR000267. Reviewing Morgan’s lab results, Dr. Stonesifer noted that Morgan’s “insulin
5 tolerance test was diagnostic of growth hormone deficiency.” Id. However, he noted that
6 “for definitive diagnosis, we will need the Cortrosyn Stim study.” Id.
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On August 24, 2015, Morgan returned to work on a three-hour-per-day schedule.

8 AR000405. On August 28, 2015, Dr. Moynihan authorized Morgan to increase her
9 schedule on Mondays and Fridays from three hours to four. AR000308.
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On September 18, 2015, Dr. Ifeanyi Nwaneshiudu, MD, NPH, reviewed the

11 medical records submitted to support Morgan’s claim to Hartford. AR 000278–81. Dr.
12 Nwaneshiudu did not include the records of Dr. Stonesifer in his review. AR000278–79.
13 Dr. Nwaneshiudu assessed that “[w]ithout any evidence of a diagnosis causing physical
14 impairment, there is no need for medical necessary work restrictions.” AR 000280. On
15 September 30, 2015, Dr. Nwaneshiudu completed an addendum to his initial review after
16 discussing Morgan’s functional status with Dr. Moynihan. AR 000270. In the addendum,
17 Dr. Nwaneshiudu noted that his “impression of no impairment diagnosis is unchanged.”
18 AR000270.
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On October 6, 2015, Hartford denied Morgan’s application for long-term disability

20 benefits based on Dr. Nwaneshiudu’s review. AR000102–06. Morgan appealed and
21 Hartford submitted her medical records to Dr. Charles Fisher, Jr., MD, for another
22 review.

ORDER - 3

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On November 18, 2015, Morgan met with Dr. Stonesifer, who noted in his

2 records: “I have written a letter today asking [Hartford] to give us more time to get her
3 growth hormone to a more appropriate level. I think she is significantly disabled and
4 growth hormone deficiency can certainly cause these symptoms . . . .” AR000173. His
5 letter, dated November 12, 2015, stated: “[Morgan] was recently diagnosed with adult
6 growth hormone deficiency. She has been on growth hormone for less than a month but it
7 may take a longer time for her growth hormone to achieve therapeutic level.” AR000169.
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On February 2, 2016, Dr. Fisher concluded that Morgan had no physical

9 limitations and that “there is no objective evidence to support a physical inability to
10 remain awake.”AR000158. On February 5, 2016, Dr. Fisher noted in an addendum that,
11 although “Dr. Stonesifer has diagnosed Ms. Morgan with Adult Human Growth Hormone
12 Deficiency using standard methodologies . . . absent any sort of specific deficit, it would
13 be impossible for any physician to specifically restrict or limit activities based on
14 cognitive deficits alone.” AR000129–30.
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On February 24, 2016, Hartford denied Morgan’s appeal based on Dr. Fisher’s

16 review. AR000085–91. On March 9, 2016, Morgan commenced the present action. Dkt.
17 1.
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III. DISCUSSION

19 A.

De Novo Review

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The parties stipulate that the standard for this case is de novo review. Under de

21 novo review of an ERISA benefits decision, “‘a district court should not take additional
22 evidence merely because someone at a later time comes up with new evidence’ and ‘[i]n

ORDER - 4

1 most cases’ only the evidence that was before the plan administrator should be
2 considered.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1091 (9th Cir. 1999) (quoting
3 Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 944 (9th
4 Cir. 1995)). Nonetheless, “the district court has discretion to consider evidence beyond
5 the record where additional evidence is necessary to conduct an adequate de novo review
6 of the benefit decision.” See also Walker v. Am. Home Shield Long Term Disability Plan,
7 180 F.3d 1065, 1070 (9th Cir. 1999) (quotation omitted).
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While not controlling, the Seventh Circuit’s precedent is informative of the

9 rationale for allowing District Courts to consider additional evidence under de novo
10 review. See Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938,
11 943 (9th Cir. 1995) (“We agree with the Third, Fourth, Seventh, Eighth, and Eleventh
12 Circuits that new evidence may be considered under certain circumstances to enable the
13 full exercise of informed and independent judgment.”). The Seventh Circuit has stated:
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Evidence is essential if the court is to fulfill its fact-finding function. Just so
in ERISA litigation. When review is deferential—when the plan’s decision
must be sustained unless arbitrary and capricious—then review is limited to
the administrative record. See Perlman v. Swiss Bank Corp., 195 F.3d 975
(7th Cir. 1999). Otherwise, however, the court decides on the record made
in the litigation. And, if material evidence conflicts, then there must be a
trial.

18 Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841, 843 (7th Cir. 2009).
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Here, the parties have suggested that evidence outside the plan administrator’s

20 claim file is generally not admissible. See Dkt. 15 at 2. They have further indicated that
21 they “do not anticipate the need for any discovery outside of the administrative record.”
22 Id. Accordingly, the Court will proceed only on the evidence in the plan administrator’s

ORDER - 5

1 claim file. The Court retains its discretion to admit and consider additional evidence that
2 “is necessary to conduct an adequate de novo review of the benefit decision.” Thomas v.
3 Oregon Fruit Products Co., 228 F.3d 991, 997 (9th Cir. 2000) (quotation omitted).
4 B.

Summary Judgment Standard

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Summary judgment is proper only if the pleadings, the discovery and disclosure

6 materials on file, and any affidavits show there is no genuine dispute on any material fact
7 and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
8 moving party is entitled to judgment as a matter of law when the nonmoving party fails to
9 make a sufficient showing on an essential element of a claim on which the nonmoving
10 party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There
11 is no genuine issue of fact for trial where the record could not lead a rational trier of fact
12 to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
13 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative
14 evidence, not simply “some metaphysical doubt”). See also Fed. R. Civ. P. 56(e).
15 Conversely, a genuine dispute over a material fact exists if sufficient evidence supports
16 the claimed factual dispute, requiring a judge or jury to resolve the differing versions of
17 the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv.,
18 Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
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Determining the existence of a material fact is often a close question. The Court

20 must consider the substantive evidentiary burden that the nonmoving party must meet at
21 trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at
22 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. Here, the Court already has the entire record

ORDER - 6

1 before it. The Court may not resolve any factual disputes in favor of the moving party on
2 summary judgment. “In a trial on the record, but not on summary judgment, the judge can
3 evaluate the persuasiveness of conflicting testimony and decide which is more likely
4 true.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999). Any findings of
5 fact requiring the court to weigh conflicting evidence must be reserved until the Court
6 conducts a trial on the record. Id. at 1094–95.
7 C.

Coverage and Proof of Disability

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An ERISA fiduciary must distribute benefits “in accordance with the documents

9 and instruments governing the plan.” 29 U.S.C. § 1104(a)(1)(D). Under the governing
10 plan, claimants like Morgan are eligible to receive monthly benefits “if [they] are
11 Disabled according to the Occupation Qualifier provision.” AR00010. The “Occupation
12 Qualifier provision” states that:
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“Disability means that . . . Injury or Sickness causes physical or
mental impairment to such a degree of severity that you are:
1) continuously unable to perform the Material and
Substantial Duties of Your Regular Occupation; and
2) not Gainfully Employed.

16 AR000009.
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The plan also requires that claimants submit a “proof of loss,” or “Proof of

18 Disability.” AR000013. “Failure to do so may delay, suspend or terminate Your benefits.”
19 Id. As part of the “proof of loss,” a claimant must submit:
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Objective medical findings which support Your Disability. Objective
medical findings include but are not limited to tests, procedures, or clinical
examinations standardly accepted in the practice of medicine, for Your
disabling condition(s).

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ORDER - 7

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The plan also states that the policy does not cover losses from a “Disability

2 beyond 12 months after the elimination period if it is due to a diagnosed condition which
3 manifests itself primarily with Self-Reported Symptoms.” AR000013.
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Hartford denied Morgan’s claim because it determined that her “proof of loss” did

5 not include objective medical findings “demonstrating the physical inability for Morgan
6 to perform her duties.” Dkt. 20 at 19. It seeks summary judgment on this same basis. Dkt.
7 20 at 19–23.
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In response, Morgan argues that Dr. Stonesifer diagnosed her with Growth

9 Hormone Deficiency based on a combination of (1) Plaintiff’s subjective complaints of
10 fatigue and “brain fog,” and (2) an objective insulin challenge test revealing an Insulin11 Like Growth Factor-1 (“IGF-1”) Z score that “was diagnostic of growth hormone
12 deficiency.” AR000155; AR000267; AR000317. Dr. Stonesifer further opined that he
13 “thinks [Morgan] is significantly disabled” after explaining that “growth hormone
14 deficiency can certainly cause [the] symptoms” revealed on Morgan’s “quality of life
15 questionnaire,” such as severe fatigue and an inability to focus or even remain standing.
16 AR000173.
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Hartford replies by citing Dr. Fisher’s independent review, which indicates that a

18 diagnosis of growth hormone deficiency is “controversial” and highlights that Dr.
19 Stonesifer’s diagnosis was based almost exclusively on self-reported symptoms.
20 AR000156–000157. However, even Dr. Fisher noted: “Morgan is chronically fatigued
21 secondary to an endocrine disorder. Her fatigue certainly does and has impaired her
22 function at work and in her daily life.” AR000131. Hartford then relies on Jordan v.

ORDER - 8

1 Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869 (9th Cir. 2004), overruled
2 on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir.
3 2006), to argue “[t]hat [Morgan] has a true medical diagnosis does not by itself establish
4 disability.” 370 F.3d at 880.
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This argument based on Jordan is effective to argue that Morgan did not suffer

6 from a disability as defined by the governing plan. However, the summary judgment
7 motion in Jordan was decided under an “abuse of discretion” standard. Id. at 878. The
8 Court is not presently tasked with determining if a genuine dispute of fact exists on
9 “whether there is a reasonable basis for the administrator’s conclusion that [Morgan] was
10 not disabled by her [growth hormone deficiency].” Jordan, 370 F.3d at 880. Instead, on
11 de novo review, the Court must assess if a genuine dispute of fact exists regarding
12 “whether [Morgan] was disabled in the sense defined by the policy.” Kearney, 175 F.3d
13 1093. While the principle iterated in Jordan is greatly important when considering the
14 evidence under an abuse of discretion standard, and will likely be outcome determinative
15 when weighing the evidence at trial, Dr. Stonesifer’s diagnosis and medical opinion of
16 disability creates a genuine dispute of fact for summary judgment under a de novo
17 standard. To accept Hartford’s argument, the Court must weigh the reports of Doctors
18 Fisher and Nwaneshidu (indicating no disability) against those of Doctors Moynihan and
19 Stonesifer (indicating disability). Such weighing of the evidence is inappropriate on a
20 motion for summary judgment under de novo review. See Kearney, 175 F.3d at 1093 (9th
21 Cir. 1999) (genuine issue of fact exists even though medical opinion suggesting plaintiff
22 had memory loss and inability to concentrate was belied by objective tests in the record).

ORDER - 9

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Because the Court has found a genuine dispute of fact regarding whether Morgan

2 was disabled under the meaning of the policy, the Court must deny Hartford’s motion for
3 summary judgment.
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IV. ORDER
Therefore, it is hereby ORDERED that Hartford’s motion for summary judgment

6 (Dkt. 20) is DENIED.

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 10