Dimry v. Bert Bell/Pete Rozelle NFL Player Retirement Plan

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHARLES DIMRY, Case No. 19-cv-05360-JSC

8 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 9 v. JUDGMENT ON THE ADMINISTRATIVE RECORD 10 BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN, et al., Re: Dkt. Nos. 33, 36 11 Defendants.

12 13 Plaintiff is a former player in the National Football League. He challenges the decision of 14 the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan (the “Plan”) to 15 deny him total and permanent disability benefits under the Plan and the Employee Retirement 16 Income Security Act of 1974 (“ERISA”). Both parties now seek judgment in their favor under 17 Federal Rule of Civil Procedure 52.1 (Dkt. Nos. 33 & 36.) Having considered the parties’ briefs 18 and the relevant legal authority, and having had the benefit of oral argument on July 30, 2020, the 19 Court finds that Defendants abused their discretion in denying Mr. Dimry’s disability claim and 20 REMANDS for further proceedings consistent with this Order. 21 BACKGROUND 22 Mr. Dimry was drafted by the Atlanta Falcons in 1988. (Supplemental Administrative 23 Record (“SAR”) at 233, Dkt. No. 34-2 at 7.2) Throughout his 12-year career with the NFL he 24 sustained a number of injures including concussions, and other head and neck injuries. (SAR at 25 316.) In 2000, he retired from the San Diego Chargers and shortly thereafter underwent an 26 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 13 & 15.) 1 anterior cervical fusion at C5-C6. (SAR 154, 156, 316.) In 2011, he had a second cervical fusion 2 surgery at C5-6 and C6-7. (SAR 21.) 3 In 2014, Mr. Dimry applied for Total and Permanent (T&P) Disability benefits under the 4 Bert Bell/Pete Rozelle NFL Player Retirement Plan. The Plan states that an individual qualifies 5 for T&P benefits if he is “substantially prevented from or substantially unable to engage in any 6 occupation or employment for remuneration or profit.” (SAR 87 (citing Plan Section 5.2(a).) Mr. 7 Dimry claimed he was disabled based on (1) cervical spine degenerative disc disease, stenosis, 8 osteophytes at C3-4, C4-5, twice failed fusion at C5-6, C6-7; (2) lumbar spine- degenerative disc 9 disease at T12-L1, L1-2, L5-S1; (3) focal segmental glomerulosclerois; (4) Crohn’s Disease; and 10 (5) knees: bilateral sprain and MCL tear of the left knee. (SAR 150-154.) In February 2015, the 11 Plan’s Disability Initial Claims Committee denied Mr. Dimry’s application finding that he was not 12 totally and permanently disabled because (1) the neutral orthopedist found that he was 13 employable, and (2) he had not presented evidence that he received Social Security disability 14 benefits. (SAR 259.) 15 Mr. Dimry thereafter retained counsel and appealed the Committee’s denial to the 16 Retirement Board which is the Plan Administrator.3 (SAR 64, 275-290.) In November 2015, the 17 Board voted unanimously to deny Mr. Dimry’s appeal concluding that he was not totally and 18 permanently disabled within the meaning of Section 5.2(a) of Plan because the Plan’s neutral 19 physicians reported, after examination, that Mr. Dimry was capable of employment. (SAR 399- 20 401.) In reaching its decision, the Board noted that there was “potentially conflicting medical 21 evidence” in the record and that “[t]o the extent some of the evidence suggested that you might be 22 totally and permanently disabled, the Retirement Board credited the findings of the Plan’s neutral 23 physicians over that evidence” because “[w]hen presented with conflicting medical evidence, the 24 Retirement Board generally has more confidence in the reports of its neutral physicians, who are 25 instructed to evaluate Players fairly, without bias for or against the Player, and who have 26

27 3 The Board is made up of six voting members—three are former NFL players appointed by the 1 experience evaluating Players and other professional athletes.” (SAR 400.) 2 In March 2016, Mr. Dimry filed a complaint in this District under ERISA (1) seeking to 3 recover benefits under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B); (2) alleging breach of 4 fiduciary duty under ERISA § 404(a), 29 U.S.C. § 1104(a); and (3) seeking statutory penalties 5 under ERISA § 502(c)(1), 29 U.S.C. 1132(c)(1). See Dimry v. Bert Bell/Pete Rozelle NFL Player 6 Retirement Plan, et al., No. 16-1413 JD. Shortly thereafter, the Social Security Administration 7 granted Mr. Dimry’s application for disability insurance benefits finding that Mr. Dimry has been 8 disabled since October 1, 2012. (SAR 9.) In 2018, the district court granted judgment in Mr. 9 Dimry’s favor finding the Board abused its discretion because the Board’s denial of Mr. Dimry’s 10 benefits claim was “based upon an unreasonable bias in favor of Plan-selected physicians” and 11 remanded the matter to the Board to re-evaluate Mr. Dimry’s T&P benefits claim. Dimry v. Bert 12 Bell/Pete Rozelle NFL Player Ret. Plan, No. 16-CV-01413-JD, 2018 WL 1258147, at *4 (N.D. 13 Cal. Mar. 12, 2018) (“Dimry I”). 14 On remand, Sam Vincent, the Disability Plan Manager, asked the Plan’s Medical Director 15 Dr. Allen Jackson to “provide a complete review” of Mr. Dimry’s application and the neutral 16 physician reports, and provide a written report. (SAR 18.) Dr. Jackson thereafter prepared an 17 eight-page report which concluded:

18 So while Mr. Dimry undoubtedly has some continuing symptoms that would be supported by his known abnormalities of this cervical spine 19 from his previous fusion surgeries, his primary impairment appears to be pain and subjective complaints that are not quantifiable and not 20 supported by any objective neurologic abnormalities by multiple examiners. If total and permanent disability determinations have to 21 be supported by objective findings which would support his subjective complaints, then it is my opinion that the medical records 22 reviewed do not provide significant objective support for this determination of total and permanent disability. 23 (SAR 26.) The Board considered Dr. Jackson’s report at their May 15-16, 2018 Board meeting 24 and tabled Mr. Dimry’s application “for further review and clarification by [Dr. Jackson].” (SAR 25 32.) The Board then sent Dr. Jackson a letter with 10 categories of follow-up questions. (SAR 26 36-37.) Dr. Jackson provided a written response to the Board’s questions which concluded that 27 Mr. Dimry’s minor degenerative disc disease did not preclude him “from working in a light or 1 sedentary job.” (SAR 38-42.) On August 22, 2018, the Board considered Mr. Dimry’s application 2 again and voted unanimously to again deny his T&P benefits application. (SAR 43-52.) This 3 second lawsuit against the Plan and the Board wherein Mr. Dimry seeks to recover benefits under 4 ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) followed. 5 DISCUSSION 6 A. Standard of Review 7 A plan participant may sue under ERISA “to recover benefits due to him under the terms 8 of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future 9 benefits under the terms of the plan...” 29 U.S.C. § 1132(a)(1)(B). “A denial of benefits challenged 10 under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit Plan gives the 11 administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe 12 the terms of the Plan” in which case an abuse of discretion standard of review applies. Firestone 13 Tire and Rubber Co. v. Brunch, 489 U.S. 101, 115 (1989). Here, it is undisputed that the Plan 14 gives the Board “full and absolute discretion, authority and power to interpret, control, implement, 15 and manage the Plan and the Trust” including to “[d]ecide claims for benefits” and thus an abuse 16 of discretion standard applies. (SAR 105-106.) 17 Mr. Dimry insists that the Court’s abuse of discretion review must be tempered with 18 skepticism given an inherent conflict of interest. See Harlick v. Blue Shield of California, 686 19 F.3d 699, 707 (9th Cir. 2012) (“our review is tempered by skepticism when the plan administrator 20 has a conflict of interest in deciding whether to grant or deny benefits”) (internal citation and 21 quotation marks omitted); see also Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th 22 Cir. 2006) (finding that in applying the abuse of discretion standard, courts should consider any 23 conflict of interest of the plan administrator). The most common type of a conflict is a structural 24 conflict which arises “where, as here, the same entity makes the coverage decisions and pays for 25 the benefits.” Harlick, 686 F.3d at 707. The Court has already concluded that there is no structural 26 conflict here because the Plan is a multi-employer benefit trust fund maintained under the Taft– 27 Hartley Act. (Dkt. No. 32 at 2.) 1 there is a conflict of interest given the Plan-retained physicians’ financial conflict of interest. 2 Even absent a structural conflict, “reliance on the reports of [] retained experts who have a 3 financial incentive to make findings favorable to [the Board] may warrant skepticism.” Demer v. 4 IBM Corp. LTD Plan, 835 F.3d 893, 902 (9th Cir. 2016). As the Dimry I court explained:

5 Our circuit has held that the reliance of a benefits plan “on the reports of its retained experts who have a financial incentive to make findings 6 favorable” to the plan “may warrant skepticism,” even in the absence of a structural conflict. The concern is that a doctor who reaps 7 substantial income or business benefits from plan referrals might allow economic self-interest to influence medical opinions and 8 judgments about a claimant’s disabilities. This is not to say that referral physicians are per se biased against claimants any more than 9 treating physicians are per se biased in favor of their patients. The party claiming a conflict bears the burden of producing “evidence of 10 a financial conflict sufficient to warrant a degree of skepticism.” If that showing is successful, the burden shifts to the plan to counter it. 11 Dimry I, 2018 WL 1258147 at *3 (citing Demer, 835 F.3d at 902). The Dimry I court held that 12 evidence that the Plan had paid Dr. Meier, the orthopedist it first retained to opine on Mr. Dimry’s 13 application, approximately $190,000 during the one year period when he examined Mr. Dimry 14 satisfied Mr. Dimry’s initial burden of production as the amount exceeded the amount of concern 15 in Demer. The burden thus shifted to the Plan to counter that initial showing, and Dimry I held 16 that the Plan had not satisfied its burden; therefore, a “modicum of skepticism” was added to the 17 standard of review. Dimry I, 2018 WL 1258147 at *4. 18 This time around Mr. Dimry offers evidence that the Plan paid Dr. Meier $213,348 to 19 conduct 67 medical examinations in 2014 (the year he conducted his exam of Mr. Dimry). (Dkt. 20 No. 36-5 at 3.) Likewise, the Plan paid Dr. Chen, who examined Mr. Dimry at the Board’s 21 request following receipt of his appeal, $71,450 in 2015 (the year he examined Mr. Dimry) which 22 includes $48,000 to conduct 16 medical examinations. (Id.) Further, Dr. Jackson, whose 23 supplemental reports the Board relied upon in denying Mr. Dimry’s benefits application following 24 remand, is the Plan’s medical director to whom the Plan paid $223,000 for Plan year 2018, 25 including $192,000 for serving as medical director and $5000 in meeting honorariums. (Id.) Even 26 apart from any issue preclusion that may apply given the Dimry I court’s findings, under Demer 27 “[t]he magnitudes of these numbers, particularly when combined, raise a fair inference that there is 1 a financial conflict which influenced the [the physicians’] assessments.” Demer, 835 F.3d at 902. 2 If Demer applies, then the burden shifts to the Plan to rebut the showing of financial 3 conflict. As the Court previously noted, however, “[t]here is an argument that Demer is 4 distinguishable because it involved a structural conflict that had been mitigated whereas here there 5 is no structural conflict as it is a Taft-Hartley plan.” (Dkt. No. 32 at 4.) Although left unsaid, 6 what Demer suggests is that the neutral physicians have a financial interest in being retained by 7 the claims administrator in the future, and that because the claims administrator is retained by 8 MetLife—which has a financial interest in paying as few claims as possible—the physicians might 9 believe that an opinion in favor of no disability would make the claims administrator more likely 10 to retain them in the future. In other words, although MetLife mitigated its structural conflict, 11 there was a structural conflict in the first instance of which the independent physicians would be 12 aware. Here, in contrast, the Plan does not have a structural conflict that needed to be mitigated as 13 the Board consists equally of player representatives and NFL representatives. Therefore, although 14 given the frequency and amount of compensation the Plan-retained physicians had a financial 15 interest in continuing to be retained by the Plan, it is difficult to discern why the physicians might 16 infer that an opinion in favor of no disability would be more likely to lead to future retention. It is 17 thus unsurprising that Mr. Dimry has not cited any case other than Dimry I that extends Demer to 18 a multi-employer benefit trust fund maintained under the Taft-Hartley Act. 19 Accordingly, the Court concludes that a straight-forward abuse-of-discretion standard 20 applies. 21 B. Abuse of Discretion Review 22 A plan administrator abuses its discretion if the decision is “(1) illogical, (2) implausible, 23 or (3) without support in inferences that may be drawn from the facts in the record.” Salomaa v. 24 Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011) (quoting United States v. 25 Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). The court weighs factors such as “‘the 26 quality and quantity of the medical evidence,’ whether the plan administrator relied on an in- 27 person evaluation or conducted a purely paper review of the records, and “whether the 1 Gorbacheva v. Abbott Labs. Extended Disability Plan, 794 F. App’x 590, 593 (9th Cir. 2019) 2 (quoting Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 630 (9th Cir. 2009) (alterations 3 in original)). 4 Mr. Dimry contends that the Board abused its discretion in denying his benefits claim 5 because (1) he was excluded from the remand process; (2) the denial was based on incomplete, 6 inaccurate, and inconsistent reports from the Plan physicians; (3) the Board’s insistence on 7 “objective evidence” is not supported by the Plan; (4) the Board failed to consider Mr. Dimry’s 8 Social Security award; and (5) the Board failed to consider or obtain a vocational evaluation. 9 1) Exclusion from the Remand Process 10 Mr. Dimry complains that he was excluded from the Board’s review of his claim following 11 remand in violation of the requirement that there be “a meaningful dialogue between ERISA plan 12 administrators and their beneficiaries,” Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 13 (9th Cir. 1997), and that the Plan give a “full and fair review” to an appeal of an adverse benefits 14 determination. See 29 U.S.C. §1133(2); 29 C.F.R. § 2560.503-1(h)(1); Salomaa, 642 F.3d at 679. 15 A full and fair review requires, among other things, an opportunity for the claimant “to submit 16 written comments, documents, records, and other information relating to the claim for benefits,” 17 29 C.F.R. § 2560.503-1(h)(1)(ii); providing the claimant with reasonable access to, and copies of, 18 all documents, records, and other information relevant to the claimant’s claim for benefits, id. § 19 2560.503-1(h)(1)(iii); and taking “into account all comments, documents, records, and other 20 information submitted by the claimant relating to the claim, without regard to whether such 21 information was submitted or considered in the initial benefit determination.” § 2560.503- 22 1(h)(1)(iv). For plans providing disability benefits, such as the one at issue here, a full and fair 23 review also requires that before the plan can issue an adverse benefit determination on review on a 24 disability benefit claim, the plan must provide the claimant “with any new or additional evidence 25 considered, relied upon, or generated by the plan . . . in connection with the claim; such evidence 26 must be provided as soon as possible and sufficiently in advance of the date on which the notice of 27 adverse benefit determination on review is required to be provided . . . to give the claimant a 1 Salomaa, 642 F.3d at 680 (holding that “physician’s evaluation provided to the plan administrator 2 falls squarely within [the regulation’s] disclosure requirement”); Schwarz v. Hartford Life & 3 Accident Ins. Co., 443 F. Supp. 3d 1085, 1090 (N.D. Cal. 2020) (“29 C.F.R. § 2560.503-1(h)(4) 4 explicitly mandates that administrators send relied-upon evidence to ‘the claimant’”). 5 The Board did not fully and fairly review Mr. Dimry’s appeal of its adverse benefits 6 decision following Dimry I. The Board does not dispute Mr. Dimry’s statement that the first 7 communication the Board had with Mr. Dimry following the entry of judgment in Dimry I was its 8 letter denying Mr. Dimry’s appeal. (Dkt. No. 38 at 7:21-22; SAR 44.) Nor does it dispute Mr. 9 Dimry’s argument that the Board did not advise him that it had asked Dr. Jackson to review the 10 appeal, or that it had received a report from Dr. Jackson, or that following that report it sent Dr 11 Jackson a list of questions, or that in response to those questions Dr. Jackson issued a second 12 report. By conducting its second review of Mr. Dimry’s appeal in secret, the Board deprived Mr. 13 Dimry of the opportunity to respond to the new evidence upon which the Board relied and perhaps 14 provide evidence of his own—an opportunity required by ERISA’s regulations. 15 In Salomaa, for example, the court held that the plan’s review of the adverse benefits 16 decision was not fair because the plan did not give the plaintiff and his attorneys and physicians 17 “access to the two medical reports of its own physicians upon which it relied.” 642 F.3d at 679. 18 The same is true here. Not only did the Board not give Mr. Dimry access to Dr. Jackson’s reports, 19 it did not even let Mr. Dimry know that it was consulting with Dr. Jackson and that he was issuing 20 reports upon which it intended to rely.4 See also Schwarz, 443 F. Supp. 3d at 1090 (concluding 21

22 4 Mr. Dimry also argues, and the Board again does not dispute, that in his April 2018 report, Dr. Jackson claimed to have reviewed documents which (1) were not part of the list of documents that 23 the Board asked him to review as part of his re-evaluation, and (2) are not contained elsewhere in the administrative record. (Compare SAR 19-20 (listing documents Dr. Jackson should review: 24 December 10, 2014 application, Dr. Meier’s February 3, 2015 report, Dr. Chen’s October 14, 2015 25 report, medical records received December 10, 2014, appeal records received August 4, 2015, a September 15, 2015 workers compensation document, and his October 17, 2016 social security 26 filing) with SAR 18 (listing documents reviewed including October 2008 Line of Duty Disability application, a September 2008 report from NFL physician Dr. James Tasto, a July 6, 2011 total 27 and permanent disability application, an August 8, 2011 report from NFL physician Dr. Gregory 1 that defendant “failed to substantially comply with ERISA’s procedural obligations” when it failed 2 to provide the claimant with the physician file reviews and that because “she did not see 3 Hartford’s two file reviews until after the final denial, Ms. Schwarz (and her legal counsel) never 4 had the chance to evaluate or rebut the file reviews’ contentions.”). 5 The Board’s insistence that Mr. Dimry is at fault because he did not request copies of 6 documents following Dimry I is unpersuasive. ERISA regulations unequivocally demand that a 7 full and fair process require the plan to provide the claimant with any new evidence which, upon 8 review, the plan will be relying upon, and to give the claimant an opportunity to respond to that 9 evidence before the plan fiduciary rules on the appeal. 29 C.F.R. § 2560.503-1(h)(4)(i). No 10 language in that regulation requires the claimant to first request that he be provided with a copy of 11 that new evidence; indeed, such a request would be nonsensical where, as here, the claimant had 12 retained an attorney and just won a federal court judgment reversing the appeal denial. That the 13 Board was reviewing Mr. Dimry’s appeal following Dimry I’s remand rather than for the first time 14 is of no moment. The first review was reversed as an abuse of discretion; thus, the full and fair 15 review requirement applied equally if not more so on remand. There is no justification for the 16 Board’s decision to exclude Mr. Dimry from the renewed review of his appeal—especially given 17 that the Board’s decision was based on a plethora of new evidence—in violation the rule that there 18 be “a meaningful dialogue between ERISA plan administrators and their beneficiaries.” Booton, 19 110 F.3d at 1463. 20 Finally, at oral argument Defendants suggested that even if the Board had allowed Mr. 21 Dimry to participate in the review process, the parties would still be back in court; in other words, 22 Defendants make, in effect, a harmless error argument. (Dkt. No. 44 at 11:9-10.) But the Board’s 23 failure to allow Mr. Dimry the opportunity to respond to the new evidence would only be harmless 24 if the Board was not willing to consider whatever new evidence or response Mr. Dimry, his 25

26 December 10, 2014 or the appeal records received August 4, 2015 which were referenced in the Board’s request for re-evaluation, it does not appear that these documents are part of the 27 administrative record. See Salomaa, 642 F.3d at 679 (holding that review is not “fair” if claimant 1 attorney, or his physicians had to the Board’s new evidence and reasoning. Such unwillingness is 2 by definition not a full and fair review. 3 2) The Objective Evidence Requirement 4 Mr. Dimry also takes issue with the Board’s reliance on a lack of objective medical 5 evidence supporting the severity of Mr. Dimry’s pain complaints to justify its denial of benefits. 6 The Board found that Mr. Dimry was not disabled within the Plan’s meaning because the 7 objective medical evidence did not “corroborate” his claim of neck and back pain that was “so 8 disabling that it precluded [him] from employment in any occupation.” (SAR 49.) But in his 9 initial report, Dr. Jackson hedged his opinion as to the disability determination: “[i]f total and 10 permanent disability determinations have to be supported by objective findings which support his 11 subjective complaints, then it is my opinion that the medical records reviewed do not provide 12 significant objective support for this determination of total and permanent disability.” (SAR 26 13 (emphasis added).) Further, in his follow-up report, Dr. Jackson noted that “[t]he pain associated 14 with degenerative disc disease is not predictable nor is it quantifiable; however, it is now a 15 degenerative disc disease and does cause some spinal pain. The pain is not always predictable 16 and/or directly correlates with the severity of the degenerative change.” (SAR 41 (emphasis 17 added).) 18 Despite Dr. Jackson having advised the Board that objective evidence would not 19 necessarily exist to corroborate Mr. Dimry’s claimed pain as such “pain is not always predictable 20 and/or directly correlates with the severity of the degenerative change,” the Board denied Mr. 21 Dimry’s benefits’ claim because the objective evidence did not support his pain complaints. (SAR 22 49 (denial letter noting that Mr. Dimry’s “pain is completely subjective and inherently 23 unquantifiable” and required the “available evidence [to] corroborate[] [your] complaints.”).) 24 Indeed, despite Dr. Jackson’s conclusion that pain from degenerative disc is not quantifiable or 25 predictable, the Board concluded that it would expect to see “major degenerative disc disease, 26 degenerative facet joint disease” and other objective findings. (SAR 49.) 27 The Board’s requirement that Mr. Dimry produce objective evidence to support his pain 1 the record.” Salomaa, 642 F.3d at 676. 2 First, it is undisputed that the Plan did not limit benefits to claimants who can produce 3 objective evidence supporting subjective complaints of pain. See Moody v. Liberty Life Assur. Co. 4 of Bos., 595 F. Supp. 2d 1090, 1098 (N.D. Cal. 2009) (holding that a plan “cannot exclude a claim 5 for lack of objective medical evidence unless the objective medical evidence standard was made 6 clear, plain and conspicuous enough in the policy to negate layman plaintiff’s objectively 7 reasonable expectations of coverage”) (internal quotation marks and citation omitted). 8 Second, while a plan may consider the lack of objective medical evidence in making a 9 benefits determination, “reliance on objective evidence can be problematic for medical conditions 10 that are not amenable to objective verification.” Id. at 1099. Dr. Jackson opined that Mr. Dimry 11 was not disabled if his subjective pain complaints had to be supported by the objective medical 12 evidence. And he also opined, in effect, that Mr. Dimry’s pain complaints could be accurate 13 despite not being fully supported by the objective medical evidence given the nature of his 14 impairment. The Board made no attempt to follow up with this observation. For example, in its 15 follow up questions to Dr. Jackson following his initial report, the Board did not ask him 16 “whether” objective evidence is required. (SAR 36-37.) Instead, in contravention to Dr. 17 Jackson’s opinion, the Board essentially concluded that Mr. Dimry was not disabled based on his 18 “failure to produce evidence that [might] simply not [be] available.” Saffon v. Wells Fargo & Co. 19 Long Term Disability Plan, 522 F.3d 863, 872 n.3 (9th Cir. 2008) (noting that “Social Security 20 precedents are relevant for the factual observation that disabling pain cannot always be measured 21 objectively—which is as true for ERISA beneficiaries as it is for Social Security claimants” and 22 “that individual reactions to pain are subjective and not easily determined by reference to objective 23 measurements.”); see also Montour, 588 F.3d at 635 (“it would probably have been unreasonable 24 for Hartford to require Montour to produce objective proof of his pain level); Minton v. Deloitte & 25 Touche USA LLP Plan, 631 F. Supp. 2d 1213, 1220 (N.D. Cal. 2009) (“by effectively requiring 26 objective evidence for a disease that eludes such measurement, MetLife has established a 27 threshold that can never be met by claimants who suffer from fibromyalgia or similar syndromes, 1 thus does not support the Board’s determination that without objective medical evidence Mr. 2 Dimry’s pain cannot be as debilitating as he and his physicians report. 3 3) The Social Security Award 4 The Board initially denied Mr. Dimry’s appeal because, among other things, the Social 5 Security Administration had not awarded him disability benefits. While Dimry I was pending, the 6 Social Security Administration approved his application for disability benefits. (SAR 9-17.) 7 Significantly, the Administrative Law Judge (“ALJ”) specifically found that:

8 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably 9 be expected to cause his alleged symptoms and that his statements concerning the intensity, persistence and limiting effects of these 10 symptoms are reasonably consistent with the medical evidence and other evidence in the record. 11 Indeed, the medical evidence fully supports the claimant’s 12 allegations and documents his ongoing difficulties, particularly in regard to his neck. 13 (SAR 13 (emphasis added).) In other words, the ALJ found that Mr. Dimry’s impairments could 14 be reasonably expected to cause his debilitating pain. 15 Following the Dimry I remand, the Board requested that Dr. Jackson consider the Social 16 Security Administration’s decision, and he did so, but he did not appear to give any weight to the 17 ALJ’s finding and there is nothing in the record that suggests he asked for any review of the social 18 security record. (SAR 18, 26.) The Board, in its renewed denial, concluded that the Social 19 Security Administration’s grant of benefits “did not alter its independent conclusion that the 20 evidence surrounding [Mr. Dimry’s] December 2014 application did not show that [he] was totally 21 and permanently disabled under the terms of the Plan.” (SAR 50.) 22 Mr. Dimry insists that the Board abused its discretion when it failed to acknowledge—let 23 alone reconcile—its grant of Mr. Dimry with “Inactive B” benefits following his social security 24 award with its finding that Mr. Dimry was not disabled. The Plan has two different approaches for 25 handling a player’s receipt of a favorable social security award. First, if the player’s application 26 for social security benefits is approved prior to applying for Plan benefits, then under Section 27 5.2(b) of the Plan, at the time the player applies for Plan benefits he is deemed totally and 1 permanently disabled (unless four voting members of the Board determine that the player was 2 fraudulently receiving the social security benefits). (SAR 53-54.) Second, if a player receives a 3 favorable social security award while his application for Plan benefits is pending—as with Mr. 4 Dimry—then, under Section 5.8 of the Plan (assuming certain factors not at issue here) the player 5 is automatically awarded Inactive B T&P benefits. (SAR 55.) In other words, if Mr. Dimry had 6 waited to apply for Plan benefits until after his favorable social security award he would have 7 automatically been deemed permanently disabled. Mr. Dimry does not challenge these Plan 8 provisions or argue that he should be entitled to benefits under Section 5.2(b), but he does 9 highlight the arbitrariness of the Board’s decision here to wholly disregard a decision from the 10 Social Security Administration which but for the timing of the decision would have necessitated a 11 finding that he was disabled under the Plan. 12 The arbitrariness of the Board’s decision is further underscored by the reasons it advanced 13 for disregarding the Social Security Administration’s decision and its failure to provide an 14 explanation for why it concluded that the medical evidence did not support Mr. Dimry’s pain 15 complaints even though the ALJ found that it did. See Montour, 588 F.3d at 635 (“While ERISA 16 plan administrators are not bound by the SSA’s determination, complete disregard for a contrary 17 conclusion without so much as an explanation raises questions about whether an adverse benefits 18 determination was the product of a principled and deliberative reasoning process.”) (internal 19 citation and quotation marks omitted). 20 First, the Board explained that the Social Security Administration did not have the benefit 21 of Dr. Meier’s and Dr. Chen’s reports explaining that “the record before the Social Security 22 Administration was devoid of conclusions—which were formed after an independent review of 23 your records and a full, physical evaluation.” (SAR 51.) However, neither Dr. Jackson nor the 24 Board considered the full social security record, including all the objective evidence on which the 25 ALJ relied. Thus, the Board discounted the ALJ’s opinion because it did not have the benefit of 26 Dr. Meier’s and Dr. Chen’s reports, while simultaneously ignoring the medical evidence which the 27 ALJ relied upon when he concluded that the objective evidence supported a disability finding. In 1 plaintiff’s social security application and declined to consider the rest because it already had its 2 own physician reviews. See Moody, 595 F. Supp. 2d at 1100. The court found that in doing so 3 defendant acted as an adversary, not a fiduciary. Id. at 1100-01. So too here. The Board’s 4 rejection of the ALJ’s findings is particularly striking where, as here, the Board’s non-disability 5 finding was based on the absence of objective evidence, and the ALJ discussed the objective 6 evidence in Mr. Dimry’s Social Security file at length—none of which Dr. Jackson reviewed. 7 (SAR 12-13.) 8 Second, the Board noted that Mr. Dimry’s social security application had been denied 9 twice before it was granted by the ALJ. (SAR 51.) Defendants contend that these denials are 10 evidence that reasonable minds could differ as to whether Mr. Dimry is disabled which precludes a 11 finding that the Board’s decision that he was not disabled was arbitrary. Not so. The issue is that 12 the ALJ found that the medical evidence supported Mr. Dimry’s pain complaints while the Plan 13 physicians did not. While the Board was not required to accept the ALJ’s opinion, it had to 14 consider it and explain why it was not persuasive. That the Social Security Administration had 15 found earlier on a different record that Mr. Dimry was not disabled is not a rational reason for not 16 even considering the ALJ’s opinion. Defendants’ reliance on Jordan v. Northrop Grumman Corp. 17 Welfare Benefit Plan, in this regard is misplaced. 370 F.3d 869 (9th Cir. 2004), abrogated on 18 other grounds by Salomaa, 642 F.3d at 673-74. Jordan noted how “[p]hysicians have various 19 criteria, some objective, some not, for evaluating how severe pain is and whether it is so severe as 20 to be disabling.” Id. at 880. When the claims administrator had reports from plan physicians 21 whose evaluations of those criteria differed from the treating physicians and were also more 22 thorough and less conclusive, then the fiduciary did not abuse its discretion in adopting the 23 opinion of the plan physicians. Id. Here, in contrast, the Board required objective evidence—and 24 asked Dr. Jackson only about the objective evidence—excluding any non-objective evidence from 25 the evaluation. Thus, it was not reasonable to reject the ALJ’s opinion out of hand simply because 26 it conflicted with Dr. Jackson conditional opinion. (SAR 26 (“If total and permanent disability 27 determinations have to be supported by objective findings which support his subjective 1 support for this determination of total and permanent disability.”) (emphasis added).) 2 Third, the Board claimed that “[t]he Social Security decision turned on factors that are 3 irrelevant to a finding of total and permanent disability under the Plan, such as your education and 4 work experience.” (SAR 51.) In so finding, the Board ignored that even without the vocational 5 expert’s opinion, the ALJ found that Mr. Dimry was limited to sedentary work such that he could 6 only stand for 15 minutes at a time and sit for 15 minutes at a time, that he can only sit, stand, and 7 walk a total of 2 hours in an 8-hour day, and that he would miss approximately 4 days of work a 8 month. (SAR 12.) In reaching this conclusion, the ALJ considered neither Mr. Dimry’s education 9 nor his work experience. Education and work experience also have nothing to do whether the 10 medical evidence fully supported Mr. Dimry’s pain complaints, as the ALJ found. 11 Finally, the Board found that it, unlike the Social Security Administration, was not 12 required to give substantial weight to the opinions of Mr. Dimry’s treating physicians and the 13 opinions of his treating physicians were not entitled to “much weight, much less dispositive 14 weight.” (SAR 50.) Defendants are correct that the Board is not bound by the Social Security 15 Administration’s treating physician rule. See Black & Decker Disability Plan v. Nord, 538 U.S. 16 822, 825 (2003). The Board, however, may not simply discount the ALJ’s finding out of hand. 17 Thus, while the Board offered reasons for failing to credit Mr. Dimry’s Social Security 18 award, its reasons for doing so were not “the result of a principled reasoning process.” Glenn v. 19 MetLife, 461 F.3d 660, 674 (6th Cir. 2006), aff'd sub nom. Metro. Life Ins. Co. v. Glenn, 554 U.S. 20 105 (2008). Rather, its decision appears to have been ends driven rather than driven by a desire to 21 have a full and fair review of the record on which to reach its decision. 22 *** 23 The Board’s glaring procedural error of conducting its review of Mr. Dimry’s appeal in 24 secret and then, after denying his appeal, refusing even then to engage in a meaningful dialogue 25 and instead telling Mr. Dimry to file a lawsuit is reason alone to find that the Board abused its 26 discretion. See Salomaa, 642 F.3d at 676. Further, this error was not harmless. Providing Mr. 27 Dimry, his attorney, and physicians the opportunity to participate in the appeal and comment on 1 objective medical evidence given that its own medical director opined that for Mr. Dimry’s 2 impairments the objective medical evidence would not be expected to always corroborate with 3 legitimate pain complaints. A meaningful dialogue could have led to the Board actually grappling 4 with the ALJ’s finding that the medical evidence “fully supported” Mr. Dimry’s allegations. 5 Instead, once again, the Board seemed intent on simply following the conclusions of its initially- 6 retained physicians, see Dimry I, 2018 WL 1258147, at *4, and thus, once again, abused its 7 discretion. 8 4) Remedy 9 Having concluded that the Board abused its discretion, the Court must determine the 10 appropriate remedy. In the Ninth Circuit, if a decision to deny benefits is found unreasonable, 11 then a “court can either remand the case to the [plan] administrator for a renewed evaluation of the 12 claimant’s case, or it can award a retroactive reinstatement of benefits.” Demer, 835 F.3d at 907 13 (internal citation and quotation marks omitted). However, “an award of benefits is not a proper 14 remedy [where] the record does not clearly establish that [the plan administrator] should 15 necessarily have awarded [the plaintiff] benefits.” Id.; see also Grosz-Salomon v. Paul Revere Life 16 Ins. Co., 237 F.3d 1154, 1163 (9th Cir. 2001) (stating that “retroactive reinstatement of benefits is 17 appropriate in ERISA cases where, ... but for [the insurer’s] arbitrary and capricious conduct, [the 18 insured] would have continued to receive the benefits or where ‘there [was] no evidence in the 19 record to support a termination or denial of benefits’[;] [i]n other words, a plan administrator will 20 not get a second bite at the apple when its first decision was simply contrary to the facts”) (internal 21 citation and quotation marks omitted; alterations in original); Canseco v. Constr. Laborers 22 Pension Tr. for S. Cal., 93 F.3d 600, 609 (9th Cir. 1996) (stating that, “[u]nlike cases wherein we 23 have remanded to the plan administrator, no factual determinations remain to be made in this 24 case”). 25 Given the Court’s findings above, remand is the appropriate remedy. The Court expects 26 that once the Board gives Mr. Dimry the full and fair review ERISA requires, and eliminates the 27 mandate of objective evidence—a mandate not in the Plan and not in Dr. Jackson’s reports— that 1 instance as the Board did not ask Dr. Jackson—on whose opinion it exclusively relied in denying 2 || Mr. Dimry’s claim on remand—whether given his subjective reports of pain, if objective evidence 3 was not required, Mr. Dimry had a total and permanent disability.” See Gross v. Sun Life 4 || Assurance Co., 763 F.3d 73, 76 Uist Cir. 2014) (stating that where an administrative record is 5 “inadequate to allow a full and fair assessment of [a plaintiff's] entitlement to disability benefits, a 6 || remand “to allow further development of the evidence” is appropriate) (internal citation and 7 quotation marks omitted). 8 CONCLUSION 9 For the reasons stated above, the Court GRANTS Mr. Dimry’s motion for judgment and 10 || DENIES Defendants’ motion for judgment. The matter is REMANDED to the Board for further 11 proceedings consistent with this Order. On remand, the Board is reminded of its obligation to 12 || provide Mr. Dimry a full and fair opportunity to participate in the process. 13 Separate judgment will be entered in Mr. Dimry’s favor. 14 This Order disposes of Docket Nos. 33 and 36. 3 15 IT IS SO ORDERED. a 16 Dated: September 15, 2020

18 Fut Soto JNCQUELINE SCOTT CORLE 19 United States Magistrate Judge 20 21 22 23 24 25 26 7 > The Court has considered Mr. Dimry’s arguments regarding the errors in Dr. Meier’s and Dr. Chen’s reports and finds that even if the Court accepted these arguments, it could not award 2g || benefits because the errors Mr. Dimry identifies in their opinions do not resolve the objective versus subjective evidence question.