BEVERLY REID O'CONNELL, United States District Judge.
This action falls under the Employee Retirement Income Security Act of 1974
After being diagnosed with uterine cancer, Plaintiff underwent surgery and chemotherapy, which led her to develop significant neuropathy and become severely depressed. As a result, Plaintiff took a leave of absence from work and submitted a claim for STD benefits in August 2011. Defendant granted that claim, and Plaintiff received STD benefits for some time. When Plaintiff reached the maximum allowable number of weeks for STD benefits under her policy, Defendant began evaluating Plaintiff's eligibility for LTD benefits. Finding her to be eligible, Defendant provided Plaintiff with LTD benefits beginning on February 10, 2012. On July 11, 2013, however, Defendant terminated Plaintiff's LTD benefits after determining that she no longer met the policy's definition of disability.
Through an attorney named Donald Cooper, Plaintiff appealed this termination of benefits in August 2013. Mr. Cooper submitted a number of Plaintiff's medical documents to Defendant in support of her appeal, but Defendant rejected Plaintiff's appeal on February 7, 2014, upholding its termination of Plaintiff's LTD benefits. Believing that Defendant wrongfully withheld benefits due under the disability insurance policy, Plaintiff filed the instant action. She now seeks review of Defendant's termination of her LTD benefits.
After a de novo review of the record and argument of counsel, the Court finds that Plaintiff is entitled to LTD benefits under the policy, and consequently that Defendant's termination was improper. Accordingly, judgment is for Plaintiff.
Plaintiff began working for Bank of America on July 30, 2010, when she was hired as a Credit Administrator. (AR0421.) As a Credit Administrator, Plaintiff's role at Bank of America entailed "[s]upervis[ing] and coordinat[ing] activities of workers engaged in processing and recording commercial, residential, and consumer loans," which involved minimal physical requirements such as occasionally "lifting, carrying, pushing, [and] pulling 10 Lbs." (AR0721.) Plaintiff's job "[m]ostly" involved "sitting," although it also included "standing or walking for brief periods of time." (AR0721.) Accordingly, the physical demand level listed for her position is "sedentary." (AR0421.) Nevertheless, the position also involves "[c]ommunicat[ing] risk analysis clearly through written and oral communication," "[i]dentify[ing] problems on credit-related issues, guidelines & policies," performing research on closed loans, and supervising between twenty and 100 people across multiple states. (AR0503, 0694.)
As a Bank of America employee, Plaintiff enrolled in the employee welfare benefits policy administered by Defendant. (See AR0017-99.) This policy provides for both short-term and long-term disability benefits. (AR0012.) Pursuant to this policy,
(AR1658.) It further states: "The loss of a professional or occupational license or certification that is required by your own occupation does not mean you meet the test of disability. You must meet the plan's test of disability to be considered disabled." (AR1658.) As for the definition of "own occupation," as referenced in this provision, the policy defines that term as:
(AR1673.) The policy also defines the term "reasonable occupation" as "any gainful activity. . . [f]or which you are, or may reasonably become, fitted by education, training, or experience," and "[w]hich results in, or can be expected to result in, an income of more than 60% of your
Finally, the policy limits LTD benefits that result from a mental or psychiatric condition. Specifically, the policy states than an employee "will no longer be considered as disabled and eligible for long term monthly benefits after benefits have been payable for 24 months if it is determined that [his or her] disability is primarily caused by" either (1) "[a] mental health or psychiatric condition, including physical manifestations of these conditions, but excluding conditions with demonstrable, structural brain damage," or (2) "[a]lcohol and/or drug abuse." (AR1660.)
In 2009, Plaintiff was diagnosed with Stage 3C/4A uterine cancer. (AR0966, 1090-91.) On June 24, 2009, Plaintiff underwent surgery to remove her uterus. (AR1091.) She then underwent three cycles of chemotherapy, which led her to develop significant neuropathy. (AR1090.) Following this treatment, Plaintiff saw Dr. Andrew Seltzer, M.D., who, on July 27, 2011, reported that Plaintiff "recently has developed constant tingling and numbness from her elbows to her hands and her feet. She feels like something is smashing every part of her limbs. She reports weakness in the hands. In the past three or four months things have escalated. She is also having abdominal and rib cage pain." (AR0943.) Dr. Seltzer subsequently diagnosed Plaintiff with chronic myofascial pain syndrome and thoracic spine pain in a report dated August 31, 2011. (AR0947.)
On August 12, 2011, Plaintiff took a leave of absence from work. (See
On September 29, 2011, Dr. Philip Corrado, Ph.D., completed a series of diagnostic tests on Plaintiff. (AR1087-1119.) Following these tests, Dr. Corrado observed: "Ms. Carrier was administered a clinical interview and given a battery of cognitive, motor, perceptual, and personality assessments. This evaluation can be considered an accurate reflection of Ms. Carrier's current level of functioning." (AR1094.) The tests run by Dr. Corrado revealed that Plaintiff "performed poorly on tasks which tapped working memory," that she demonstrated "deficits in executive functioning," and that she "me[t] the diagnostic criteria for pain disorder." (AR1114, 1117.) Consequently, Dr. Corrado concluded that Plaintiff "should be considered totally disabled on a psychiatric basis at th[at] time." (AR1118.)
Defendant wrote Plaintiff a letter on October 12, 2011, informing her that her STD benefits had been terminated because her recent medical reports indicated that her condition had improved "due to an excellent response from trigger point injections." (AR0964-65.) After Plaintiff appealed, however, Defendant overturned its decision on the basis that, although Plaintiff had undergone "8 trigger point injections," she nevertheless "only obtained temporary relief."
On May 15, 2012, Defendant's personnel wrote a note in Plaintiff's file stating that there was no medical information to support a continued absence. (AR0466.) Shortly thereafter on May 18, 2012, Dr. Seltzer submitted an Attending Physician Statement to Defendant in which he determined that Plaintiff remained unable to work due to "thoracic pain, rip pain, lumbar pain, and cervicalgia." (AR1064-65.) Dr. Corrado also submitted a letter to Defendant on Plaintiff's behalf, opining that it was "completely unfair and an unreasonable expectation" that Plaintiff had been subjected to deadlines related to the benefits policy of which she was not previously "given [Plaintiff's] physical, psychiatric, as well as neurocognitive deficits." (AR1253-54.) Dr. Corrado further stated that, "due to the fact that [Plaintiff] is disabled, [Defendant] cannot expect her to meet arbitrary deadlines." (AR1254.) Despite this correspondence and Defendant's notations, it does not appear that Defendant ceased providing Plaintiff with STD benefits.
In an August 10, 2012 letter, Defendant informed Plaintiff that she would "soon reach the maximum number of weeks for short-term disability benefits under [her] plan," and that Defendant was "reviewing
In support of this conclusion, Dr. Corrado submitted a Behavioral Health Clinician Statement on September 24, 2012, in which he stated that his rationale for recommending disability leave was Plaintiff's "major depression" and "cognitive disorder." (AR1199-1200.) Dr. Corrado also opined that Plaintiff's reasoning and judgment were impaired, noting: "jumping to conclusions; [t]hinks she will be better off dead; engages in catastrophic thinking; overgeneralizes." (AR1199.) Defendant responded to Plaintiff on September 27, 2012, advising her that Defendant was unable to complete its review of Plaintiff's claim within forty-five days "[d]ue to [Plaintiff's] delay in sending the requested information," but that Defendant expected to be able to make a decision by October 21, 2012. (AR1201-02.) On October 18, 2012, Defendant wrote to Plaintiff, indicating that Plaintiff was "eligible to receive monthly benefits effective February 10, 2012 and continuing for up to 18 months, so long as [she] remain[ed] disabled from [her] own occupation." (AR1206-07.)
Defendant wrote Plaintiff another letter on January 15, 2013, advising her that its personnel had been trying to reach Plaintiff to discuss her current condition and any changes to the treatment of her condition. (AR1217.) That same day, Defendant sent Plaintiff a letter advising her of the upcoming change in the definition of "disability" under the policy from "own occupation" to "any occupation" on August 10, 2013 (eighteen months after February 10, 2012), and requesting information to enable Defendant to evaluate her claim under this new standard. (AR1218-19.) Defendant also submitted a request for all of Dr. Corrado's records for Plaintiff on January 23, 2013, (AR1220), which he provided on January 24, 2013, (AR1228-29). Dr. Corrado's office notes spanned the timeframe between October 20, 2011 and January 10, 2013. (AR1228-29.) On February 26, 2013, Defendant sent Plaintiff a letter confirming that Plaintiff remained "totally disabled from [her] own occupation" and thus remained eligible for LTD benefits at that time. (AR1324-26.)
Dr. Corrado faxed Defendant additional medical records on May 20, 2013, which included a completed questionnaire sent to Plaintiff by Defendant, an updated Clinical Assessment of Depression ("CAD"), and office visit notes from April 18, 2013, April 25, 2013, and May 2, 2013. (AR1331-41.) In the questionnaire, which Dr. Corrado completed on May 8, 2012, Dr. Corrado opined that Plaintiff was "completely and totally disabled" owing to the fact that she was suffering from "severe depression [and] severe cognitive impairment." (AR1333.) In the CAD, which is "a 50-item self-report instrument that is comprehensive, highly reliable, and sensitive to depressive symptomatology," Plaintiff's total CAD score "placed her in the 99th percentile[,] indicating that her overall CAD score f[ell] within the range over very significant clinical risk." (AR1334-35.)
Defendant ordered a peer evaluation of Dr. Corrado's conclusions, which Dr. Elana Mendelssohn, Psy.D., completed on June 20, 2013. (AR1342-49.) In her report, Dr. Mendelssohn described how she reviewed Dr. Corrado's medical documentation with regard to Plaintiff and consulted with Dr. Corrado via teleconference. (AR1346-47.) Based on her evaluation, Dr. Mendelssohn provided the following summary of her analysis of Plaintiff's cognitive impairment:
(AR1346-47 (emphasis added).) Dr. Mendelssohn further opined that no restrictions or limitations were medically appropriate, and that there "were no examination findings of any functional impairment suggesting that the claimant's ability to work was directly impacted by an adverse medication effect, from a psychological standpoint." (AR1346-47.)
On July 11, 2013, Defendant notified Plaintiff of its decision to terminate Plaintiff's LTD benefits based on its determination that she no longer met the definition of disability. (AR1350-52.) After restating the terms of the policy, the letter informed Plaintiff that in addition to considering clinical information submitted by Dr. Corrado, Defendant "had an independent physician specializing in Psychiatry review the clinical information available in the [sic] and contact Dr. Corrado telephonically." (AR1350-51.) After noting Dr. Corrado's opinion that Plaintiff "cannot work because [Plaintiff is] completely and totally disabled due to severe depression and severe cognitive impairment most likely due to chemotherapy," Defendant nevertheless concluded that "there [we]re insufficient medical findings documented to support a level of functional impairment that would preclude [Plaintiff] from performing the sedentary physical demand duties of [her] own occupation as a Credit Administrator." (AR1351.) The letter explained:
(AR1351.) The letter then informed Plaintiff of her right to appeal the decision, noting that Defendant would review any additional information that Plaintiff wished to submit. (AR1352.) It further informed Plaintiff of her right to bring a civil action under ERISA. (AR1352.)
Following Defendant's termination of Plaintiff's LTD benefits, Plaintiff wrote to Defendant in August 2013 to appeal the decision, informing Defendant that her attorney, Don Cooper, would be following up with Defendant on her behalf. (AR1371-72.) Mr. Cooper sent Defendant a letter, dated August 28, 2013, appealing the termination of Plaintiff's LTD benefits.
Dr. Corrado's report also attacked Defendant's July 11, 2013 letter, noting that the independent reviewer they relied upon "never evaluated or worked with" Plaintiff, "completely ignored the objective findings that [Plaintiff] is suffering from Major Depressive Disorder," and was "not an expert in Neuropsychology and ha[d] no basis to draw any conclusions about [Plaintiff's] neuropsychological status." (AR1363.) Dr. Corrado stated affirmatively that he completely disagreed with Defendant's rationale for terminating Plaintiff's LTD benefits, and in particular took issue with Defendant's suggestion that Plaintiff was resistant to seeing a psychiatrist. (AR1363.) According to Dr. Corrado:
(AR1363.) Dr. Corrado then concluded by noting that Plaintiff's condition had not improved but in fact had deteriorated since she was first granted LTD benefits by Defendant in March 2013. (AR1363.)
On October 7, 2013, Dr. Corrado sent Defendant a letter indicating that Plaintiff remained under his care and that she was "temporarily totally disabled at th[at] time and [wa]s not able to return to her work duties." (AR1387-88.) Dr. Corrado also authored two Attending Physician Statements—dated September 17, 2013 and October 17, 2013—in which he opined that Plaintiff was disabled and was "unable to work due to severe depression." (AR1397, 1407.) Also on October 17, 2013, Plaintiff's pain specialist, Dr. Niamehr, issued a report concluding that "it [wa]s not appropriate for her to work at th[at] time." (AR1458.) On December 12, 2013, Plaintiff's attorney, Mr. Cooper, submitted these documents and others to Defendant to support Plaintiff's appeal. (See AR1413-14; see also AR1546-57.)
In considering Plaintiff's appeal, Defendant ordered several additional peer reviews. First, Dr. Leonard Schnur, Psy.D., performed a peer evaluation of Dr. Corrado's findings on January 24, 2014. (AR1615-21.) The stated purpose of Dr. Schnur's analysis was to determine whether there was sufficient medical evidence to substantiate a functional impairment that would preclude Plaintiff from performing her own occupation or any occupation from
Second, Dr. Malcolm McPhee, M.D., who specializes in pain management, completed another peer review on January 25, 2014. (AR1623-27.) In his review, Dr. McPhee summarized Plaintiff's medical maladies and provided several opinions related to her conditions. For example, Dr. McPhee opined that Plaintiff's uterine cancer from 2009 likely "would not preclude work activity." (AR1623.) Similarly, Dr. McPhee observed that Plaintiff developed paclitaxel plus carboplatin-induced peripheral neuropathy that required a reduction in Plaintiff's dosage during chemotherapy, but then noted that "CP-induced neuropathy is a symmetrical, distal and predominantly sensory neuropathy that reverses after discontinuance of chemotherapy." (AR1623.) Consequently, Dr. McPhee concluded that Plaintiff's neuropathy condition "would not preclude sedentary work activity." (AR1623.) Finally, Dr. McPhee acknowledged Dr. Niamehr's reports regarding Plaintiff's pain in her neck, shoulders, upper chest, bilateral arms, middle back, low back, legs, and thighs, and that Dr. Niamehr "described tenderness and hypersensitivity of the cervical and upper thoracic paraspinals with no neurological findings," yet Dr. McPhee concluded that "this condition would not preclude sedentary work activity for the time period in question." (AR1623.)
Lastly, Defendant ordered a peer evaluation by Dr. Tamara Bowman, M.D., who specializes in Internal Medicine and Endocrinology, which she completed on February 5, 2014. (AR1630-36.) Like Drs. Schnur and McPhee, Dr. Bowman concluded that there was insufficient documentation to substantiate a finding of functional impairment that would preclude Plaintiff from performing her job duties. (AR1534.) Specifically, Dr. Bowman concluded:
(AR1634.) Based on this analysis, Dr. Bowman determined that, "from an internal medicine standpoint, there [we]re insufficient clinical findings to support a level of functional impairment that would preclude [Plaintiff] from performing the sedentary physical demand duties of her own occupation from 7/11/13 through 1/31/14, on a full-time basis." (AR1634.)
Following these evaluations, Defendant informed Plaintiff on February 7, 2014 that it had decided to uphold its termination of her LTD benefits, effective July 11, 2013, based on its determination that there was insufficient medical evidence to support Plaintiff's continued disability pursuant to the "own occupation" standard under the policy. (AR1637-39.) In this letter, Defendant stated that much of Plaintiff's medical documentation predated the time period under review, and that this documentation "summarized her treatment history and although including a MOCA for depression, did not include a sufficient range of standardized measures of cognitive and emotional functioning to accurately substantiate the presence of an ongoing functional impairment to preclude work in her own occupation." (AR1638.)
Plaintiff has continued to be treated following Defendant's decision to uphold its termination of benefits to Plaintiff. On February 12, 2014, Dr. Corrado submitted another fax to Defendant observing that Plaintiff "[wa]s temporarily totally disabled at th[at] time and [wa]s not able to return to her work duties." (AR1640.) On April 10, 2014, Dr. Corrado submitted another Attending Physician Statement asserting the same conclusion. (AR1648.) Nevertheless, Defendant has made no payments under the policy following July 11, 2013. Believing this to be a wrongful withholding of benefits, Plaintiff filed this action on May 21, 2014. (Dkt. No. 1.)
When Congress enacted ERISA, it did so to protect the "interests of participants in employee benefit plans and their beneficiaries." 29 U.S.C. § 1001(b). To this end, ERISA requires employers and plan administrators to provide participants with certain information about their benefits plans. It also permits a participant to file a civil action in federal court to challenge a denial of benefits under a benefits plan. Id. § 1132(a)(1)(B); Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). When presiding over such a cause of action, and reviewing a plan administrator's decision to deny benefits to a participant, a district court applies one of two standards of review: it reviews the decision either de novo or for an abuse of discretion. The default standard of review is de novo. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). A court reviews for abuse of discretion where the plan itself provides for it or otherwise grants the administrator discretionary authority to determine a participant's eligibility for benefits. Metro.
Accordingly, the Court must review the record without deference to determine whether the plan administrator correctly terminated Plaintiff's benefits. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir.2006) ("If de novo review applies, . . . [t]he court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits, without reference to whether the administrator operated under a conflict of interest.").
To begin, Plaintiff has submitted evidence, attached as Exhibit A to the Declaration of Christian J. Garris, that was not included in the Administrative Record. (Dkt. No. 20-1 at 4-13.) Ordinarily, in conducting de novo review of an administrator's decision, "only the evidence that was before the plan administrator at the time of determination should be considered." Opeta v. Nw. Airlines Pension Plan for Contract Emps., 484 F.3d 1211, 1217 (9th Cir.2007); accord Fleming v. Kemper Nat'l Servs., Inc., No. C-03-5135 MMC, 2005 WL 839639, at *16 (N.D.Cal. Apr. 11, 2005) ("At trial, the Court generally considers only `the evidence that was before the plan administrator. . . at the time of the determination.'" (alteration in original) (quoting Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995))). Nevertheless, a court may consider additional evidence "when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision." Mongeluzo, 46 F.3d at 944 (quoting Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir.1993)). Plaintiff agrees that the evidence she now seeks to admit was not presented to the plan administrator, but she nevertheless urges the Court to consider it now.
Specifically, Plaintiff seeks to introduce medical records from two doctors who treated Plaintiff—Drs. Steven Applebaum, M.D., and Donald Boger, M.D.—in addition to an MRI scan and bone density testing, none of which was presented to the plan administrator. (See Garris Decl. Ex. A.) According to Plaintiff, the Court should consider these materials because Defendant is to blame for failing to obtain them earlier. (Pl.'s Trial Br. at 24.) In support of this argument, Plaintiff notes that she (1) identified Dr. Applebaum and Dr. Boger as two of her treating physicians in a report she submitted to Defendant, (see AR0690), and (2) provided Defendant with authorization to obtain her medical records, (see AR1470-72).
As Defendant contends, however, it was Plaintiff's burden to establish that she was disabled before the plan administrator, not Defendant's. Plaintiff's disability policy explicitly states that LTD benefits will cease on "[t]he date [she] fail[s] to provide proof that [she] meet[s] the LTD test of disability." (AR1659.) Such language unequivocally places the burden of establishing disability on the insured, and courts have consistently upheld this practice as proper. See, e.g., Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 63 F.Supp.2d 1145, 1157 (C.D.Cal.1999) ("It is not inappropriate for an insurance company to place an initial burden of proof on claimants."), aff'd, 370 F.3d 869 (9th Cir.2004); Sabatino v. Liberty Life Assurance Co. of Boston, 286 F.Supp.2d 1222, 1232 (N.D.Cal.2003) ("The Court concludes that Plaintiff must carry the burden to prove that she was disabled under the meaning of the plan. . . ."); see also Glazer v.
In Opeta, for example, the Ninth Circuit discussed the "exceptional circumstances" that justify admitting evidence not presented to the administrator below. Id. These circumstances included:
Id. (quoting Quesinberry, 987 F.2d at 1027). Plaintiff has not argued, let alone established, that any of these circumstances are present here. And while these enumerated circumstances are not exhaustive, see id. Plaintiff has not provided any reason why the circumstances here are similarly "exceptional." Plaintiff does not suggest, for example, that she somehow lacked access to these medical records at the time of the administrator's decision. Rather, it appears that she simply did not think to include this evidence. Given the Ninth Circuit's admonition that "a district court should not take additional evidence merely because someone at a later time comes up with new evidence," the Court declines to consider Exhibit A to the Declaration of Christian Garris. Opeta, 484 F.3d at 1217.
Because the standard of review is de novo, Plaintiff bears burden of proving entitlement to benefits. Muniz v. Amec Constr. Mgmt. Inc., 623 F.3d 1290, 1294 (9th Cir.2010). Consequently, to demonstrate that she is entitled to benefits, Plaintiff must establish that she fit the definition of "disability" under the policy during the time period of July 11, 2013 to January 31, 2014. At the time Defendant terminated Plaintiff's benefits, the applicable definition for disability remained the "own occupation" definition (until August 10, 2013). (See AR1218-19.) Accordingly, Plaintiff must demonstrate that, during the time period in question, she could not perform the material duties of the occupation that she was "routinely performing when [her] period of disability" began, viewed as that occupation is normally performed in the national economy. (AR1658, 1673.) As reflected by the Administrative Record, the material duties of Plaintiff's job include little physical activity, but the following responsibilities: "[c]ommunicat[ing] risk analysis clearly through written and oral communication," "[i]dentify[ing] problems on credit-related issues, guidelines & policies," performing research on closed loans, and supervising between twenty and 100 people across multiple states. (AR0503, 0694.) Accordingly, Plaintiff must demonstrate that her condition prohibited her from performing these duties.
Much of Plaintiff's argument on this basis focuses on the thorough neuropsychological testing that Dr. Corrado performed
In addition, Dr. Corrado performed an analysis of Plaintiff's abilities related to work function in this report, detailing her impairment level as of August 15, 2013—well within the timeframe at issue here. Dr. Corrado concluded that Plaintiff was at that time suffering moderate or severe impairment with regard to the following functions related to work: (1) the ability to comprehend and follow instructions, (2) the ability to perform simple and repetitive tasks, (3) the ability to maintain a work pace appropriate to a given workload, (4) the ability to perform complex and varied tasks, (5) the ability to influence people, (6) the ability to make generalizations, evaluations, or decisions without immediate supervision, and (7) the ability to accept and carry out responsibilities for direction, control, and planning. (AR1362-63.) Dr. Corrado stated that this analysis was "based on clinical interviewing, observation, and objective test findings." (AR1363.)
In fact, Dr. Corrado has consistently found Plaintiff to be disabled based on the same cognitive deficiencies that he found after performing the September 2011 tests. For example, on December 13, 2011, Dr. Corrado noted that he assisted Plaintiff in filling out her state disability benefits forms because she was "having a hard time completing activities of daily living." (AR1278-79.) On January 10, 2012, Dr. Corrado commented that Plaintiff was "having a difficult time even performing her activities of daily living," and that she was "not taking care of her affairs." (AR1276.) On July 26, 2012, Dr. Corrado wrote to Defendant to complain about the deadlines that Defendant wished Plaintiff to meet to retain benefits, observing that this was "an unreasonable expectation given [Plaintiff's] physical, psychiatric, as well as neurocognitive deficits." (AR1253.) On September 7, 2012, Dr. Corrado wrote that, "[i]n terms of her cognitive functioning, [Plaintiff] exhibit[ed] difficulty concentrating," and that she "was only able to remember two words after a three-minute delay." (AR1242.) On September 21, 2012, Dr. Corrado opined that Plaintiff was "totally disabled" due to "significant cognitive deficits which would preclude her from working." (AR1241.) On May 8, 2013—two months before Defendant terminated Plaintiff's benefits—Dr. Corrado noted that Plaintiff was suffering the following cognitive impairments at the time: "Inability to think [and] sustain concentration. . . severe memory problems [and] impairment." (AR1332.) He further concluded at that time that, based on her CAD scores, Plaintiff was at "[v]ery [s]ignificant [c]linical [r]isk" of suffering cognitive and physical fatigue. (AR1333.) And, as discussed above, Dr. Corrado repeated
Dr. Corrado's periodic monitoring of Plaintiff thus consistently led him to determine that Plaintiff remained cognitively impaired from the time that he administered the cognitive testing to the timeframe in question. Owing to the need to communicate effectively, perform research, and supervise others as a Credit Administrator, the cognitive deficiencies identified by Dr. Corrado make it highly unlikely that Plaintiff could perform the material duties of her occupation. Accordingly, Dr. Corrado's reports provide persuasive evidence that Plaintiff was disabled during the applicable timeframe.
Defendant, of course, presented the conclusions of several doctors who disagreed with Dr. Corrado's findings after conducting peer reviews. Plaintiff challenges these reviews in part on the basis that none of these doctors ever treated Plaintiff or even examined her in person. Indeed, they performed their analyses based on the medical examinations performed and records kept by Dr. Corrado. As Defendant argues, however, Defendant was not required to send a doctor to perform an in-person examination of Plaintiff. See Brown v. Conn. Gen. Life Ins. Co., No. C 13-5497 PJH, 2014 WL 7204936, at *12, 2014 U.S. Dist. LEXIS 175112, at *37-38 (N.D.Cal. Dec. 17, 2014) ("[W]hen the court reviews a plan administrator's decision de novo, the burden of proof remains with the claimant to establish that he/she is entitled to benefits and does not shift back to the administrator once the claimant has advanced some evidence to support his/her claim, as plaintiff suggests in arguing that [defendant] was obligated to arrange for an in-person medical examination rather than relying on the analysis of the file by its in-house nurse reviewer and in-house psychiatrist." (internal citation omitted)). Similarly, the Court does not grant deference to Dr. Corrado's conclusions simply because he is the physician who has been treating Plaintiff. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003) ("Nothing in [ERISA] suggests that plan administrators must accord special deference to the opinions of treating physicians.").
Nevertheless, the Court finds Dr. Corrado's conclusions sounder than those presented by the peer reviewers. Many of the opinions rendered by these reviewers are presented in conclusory fashion, making it unclear how they reached such starkly contrasting results from those of Dr. Corrado despite reviewing the same materials. For example, Dr. Mendelssohn's report largely summarizes the results of Dr. Corrado before simply concluding that there was "a lack of specific examination findings and behavioral observations to clearly substantiate the claimant's current cognitive functioning." (AR1346-47.) The greatest detail she provides in her review concerns a perceived discrepancy between Dr. Corrado's characterization of Plaintiff's suicidal tendencies and his notes on the subject. Specifically, Dr. Corrado wrote in his notes that Plaintiff "continue[d] to feel suicidal and ha[d] a plan" but that she promised not to harm herself, but in a phone call with Dr. Mendelssohn he stated that she was "extremely suicidal." (AR1336, 1347.) The Court does not find this discrepancy material, particularly given that his notes clearly
In her review, Dr. Bowman concluded that there were "insufficient clinical findings to support a level of functional impairment that would preclude performance of her sedentary physical demand job duties," but she did not address the troublesome cognitive deficiencies identified by Dr. Corrado. (AR1634.) And while Dr. Schnur—a psychologist—determined that Dr. Corrado's documentation "did not include a sufficient range of standardized measures of cognitive and emotional functioning to accurately substantiate the presence of an ongoing functional impairment," he also indicated that it would be helpful to obtain an additional independent medical examination "from a neuropsychological standpoint to address the claimant's more current functioning during the time period under review." (AR1619-20.) No additional examination was performed. That is not to say that Defendant had a duty to conduct such an examination; as discussed above, Defendant was under no such obligation. Yet Dr. Schnur's indication that he needed more information to provide a full opinion undercuts his report as a rebuttal to Dr. Corrado's opinions that were based on his frequent periodic monitoring of Plaintiff. Accordingly, the Court finds Dr. Corrado's conclusions more reliable than those presented by Drs. Mendelssohn, Schnur, and Bowman.
Plaintiff has also identified evidence in the Administrative Record that she was suffering debilitating pain that impaired her ability to perform the minimal physical tasks required by her occupation. Specifically, on October 17, 2013—several months after Defendant terminated Plaintiff's benefits—Plaintiff's pain specialist, Dr. Niamehr, issued a report concluding that "it [wa]s not appropriate for her to work at th[at] time" because Plaintiff was suffering from (1) cervicalgia, (2) cervical facet syndrome, (3) hip pain, (4) low back pain, and (5) peripheral neuropathy, secondary to drugs or chemo.
Nevertheless, based on Plaintiff's cognitive deficiencies identified by Dr. Corrado, the Court finds that Plaintiff has satisfied her burden of establishing that she fits the definition of disability under the "own occupation" standard pursuant to Defendant's policy. The Administrative Record demonstrates that Plaintiff's cognitive impairment hinders her ability to perform the material duties of her occupation of Credit Administrator, including written and oral communication, problem solving, performing research, and supervising other employees. (See AR0503, 0694.) Defendant thus improperly terminated Plaintiff's benefits on July 11, 2013.
Defendant's remaining arguments do not alter this result. For example, Defendant argues that the Court should afford its decision deference because Defendant engaged in a good-faith exchange of information with Plaintiff. (Def.'s Trial Br. at 20.) Indeed, when applying an abuse of discretion standard, if "an administrator can show that it has engaged in an ongoing, good faith exchange of information between the administrator and the claimant, the court should give the administrator's decision broad deference notwithstanding a minor irregularity." Abatie, 458 F.3d at 972 (internal quotation marks omitted). But the parties both agree that de novo review applies here, which reduces the Court's role simply "to evaluat[ing] whether the plan administrator correctly or incorrectly denied benefits, without reference to [a procedural irregularity such as] whether the administrator operated under a conflict of interest." Id. at 963.
Finally, Defendant argues that the Court should determine Plaintiff's disability to be primarily psychological, thus subjecting her benefits to a mental health limitation in the policy. (Def.'s Trial Br. at 21-22.) Because this was not the basis for Defendant's termination of Plaintiff's benefits, however, it would not be a proper basis on which to uphold Defendant's decision. See, e.g., Jebian v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1104-05 (9th Cir.2003) ("[A] contrary rule would allow claimants, who are entitled to sue once a claim had been `deemed denied,' to be `sandbagged' by a rationale the plan administrator adduces only after the suit has commenced. Our refusal to subject claimants to that eventuality parallels the general rule that an agency's order must be upheld, if at all, on the same basis articulated in the order by the agency itself, not a subsequent rationale articulated by counsel." (internal quotation marks and citation omitted)).
The policy requires that as of August 10, 2013, a different standard apply to Plaintiff's LTD benefits; that standard incorporates a definition of disability that the medical opinions did not address—the "any reasonable occupation" standard. (AR1218-19.)
Although Defendant cites Ninth Circuit authority for the proposition that the
In at least one instance where a district court engaged in de novo review, the Ninth Circuit gave discretion "to the district court whether to remand to the plan administrator for an initial factual determination." Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 944 (9th Cir.1995). Although the Court has such discretion, remand is appropriate here. See Canseco v. Constr. Laborers Pension Trust for S. Cal., 93 F.3d 600, 609 (9th Cir.1996) (concluding it would be inappropriate to remand "[o]n the facts of [that] case" because "no factual determinations remain[ed] to be made"). Neither Plaintiff's nor Defendant's doctors have applied the "any reasonable" standard to Plaintiff's case; there is nothing in the Administrative Record for the Court to resolve this factual issue. The Court is not willing to supplant the opinion of a medical expert to make this determination. This action is thus remanded to the plan administrator—only in regard to Plaintiff's LTD benefits subsequent to August 10, 2013—to determine whether Plaintiff meets the definition of "disability" under the "any reasonable occupation" standard, consistent with this opinion.
The Court thus finds that Defendant improperly terminated Plaintiff's LTD benefits on the basis that she was able to perform the material duties of her own occupation. Defendant is thus
Judgment is for Plaintiff.
