1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 KANDICE GRAY, Case No. 2:23-cv-00630-MCS-PLA 11 Plaintiff, FINDINGS OF FACT AND 12 CONCLUSIONS OF LAW 13 v.
14 UNITED OF OMAHA LIFE 15 INSURANCE COMPANY,
16 Defendant. 17 18 19 This is an action for recovery of benefits under a disability plan governed by the 20 Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et 21 seq. (See generally Compl., ECF No. 1.) The parties agreed to present the case on cross- 22 motions under Federal Rule of Civil Procedure 52. (Joint Scheduling Conference Report 23 5, ECF No. 15.) Briefing is complete. (Def.’s Opening Br., ECF No. 24; Pl.’s Opening 24 Br., ECF No. 27; Def.’s Resp. Br., ECF No. 29; Pl.’s Resp. Br., ECF No. 30.) The Court 25 heard oral argument on November 6, 2023. (Mins., ECF No. 33.) 26 I. LEGAL STANDARD 27 “In an action tried on the facts without a jury . . . , the court must find the facts 28 specially and state its conclusions of law separately. The findings and 1 conclusions . . . may appear in an opinion or a memorandum of decision filed by the 2 court.” Fed. R. Civ. P. 52(a). While a court must normally hear testimony in open court 3 during a bench trial, except when testimony is heard on affidavits or on depositions, 4 Fed. R. Civ. P. 43(a), (c), in an ERISA case, “the district court may try the case on the 5 record that the administrator had before it.” Kearney v. Standard Ins. Co., 175 F.3d 6 1084, 1095 (9th Cir. 1999). Even on this limited record, a court still must make findings 7 of fact under Rule 52(a). Id. 8 II. FINDINGS OF FACT 9 1. Plaintiff Kandice Gray’s former employer, Tessie Cleveland Community 10 Services Organization (“Tessie”), established and maintained an ERISA-governed 11 employee welfare benefit plan that provided short-term disability (“STD”) as well as 12 long-term disability (“LTD”) benefits to eligible employees. (Administrative Record 13 (“AR”) 1–37, 796–839.)1 Defendant United of Omaha Life Insurance Company issued 14 the disability insurance group policies to Tessie that fund the benefits of the Group Short 15 Term Disability Plan (“STD Plan”) and the Group Long Term Disability Plan (“LTD 16 Plan”) (collectively, “Plans”). (Id.) Defendant was the claims administrator for STD 17 and LTD benefits under the Plans. (Id. at 27–28, 827–28.) Plaintiff was a participant in 18 the Plans through her employment with Tessie. (See id. at 191.) 19 2. The Plans provide that, in order to be entitled to benefits, Plaintiff must be 20 disabled as defined by the Plans. For the first 24 months of disability,2 the STD Plan 21 and LTD Plan both define Total Disability as follows: 22
23 1 Defendant filed the administrative record as an exhibit to the declaration of Laura 24 Poureshmenantalemy that spans ECF Nos. 24-2 to -5. Portions of the administrative record authorized to be filed under seal appear at ECF No. 32. Pinpoint citations of the 25 record refer to the pagination Defendant appended to the bottom right corner of each 26 document. 2 The definition of disability applicable after 24 months is different but immaterial to 27 this case because Defendant denied Plaintiff’s claim for benefits in the first 24 months 28 after Plaintiff alleges she became disabled. 1 Total Disability and Totally Disabled means that because of 2 an Injury or Sickness You are unable to perform, with 3 reasonable continuity, the Substantial and Material Acts 4 necessary to pursue Your Usual Occupation and You are not 5 working in Your Usual Occupation. 6 (Id. at 31; accord id. at 832.) 7 3. The Plans also provide the following pertinent definitions: 8 Substantial and Material Acts means the important tasks, 9 functions and operations generally required by employers 10 from those engaged in Your Usual Occupation that cannot be 11 reasonably omitted or modified. 12 . . . 13 Usual Occupation means any employment, business, trade or 14 profession and the Substantial and Material Acts of the 15 occupation You were regularly performing for the 16 Policyholder when the Disability began. Usual occupation 17 includes, but is not necessarily limited to, the specific job You 18 performed for the Policyholder. 19 (Id. at 31; accord id. at 832.) 20 4. Plaintiff submitted a claim for STD benefits to Defendant claiming to be 21 disabled from her occupation as a supervisor and mental health therapist as of August 22 9, 2021, due to “back pains, sharp pains in arms/hands.” (Id. at 1036.)3 23 5. As set forth in the Employer’s Statement provided with the claim, 24 Plaintiff’s gross weekly pay was $1,960.96. The strength demand of her job was best 25
26 3 Separately, Plaintiff made a claim for state disability insurance. Documents in the 27 administrative record show the California Employment Development Department 28 remitted payments to Plaintiff beginning in August 2021. (AR 199–201.) 1 described as “Light,” meaning a job with “frequent lift/carry up to 10 lbs.” and “20 lbs. 2 [m]aximum lifting,” or “if less lifting is involved but significant walking/standing is 3 done or if [the job is] done mostly sitting but requires push/pull or arm or leg controls.” 4 (Id. at 1038–39.) 5 6. In support of the claim, Paul Guidry, M.D., provided an Attending 6 Physician’s Statement (“APS”) dated August 9, 2021. Dr. Guidry’s APS listed a 7 diagnosis of lumbar radiculopathy with symptoms of “severe pain & spasms.” Dr. 8 Guidry indicated that he first treated Plaintiff on August 9, 2021, and stated that she 9 would be disabled from August 7, 2021, to October 9, 2021. Dr. Guidry indicated 10 Plaintiff had functional limitations and abilities such that she was able to lift up to five 11 pounds, sit, stand, and walk occasionally, but that she was unable to lift more than five 12 pounds, carry any weight, bend, squat, or stoop. Dr. Guidry claimed Plaintiff was unable 13 to work because she could not sit or stand without pain or spasms. As a treatment plan, 14 Dr. Guidry provided: “Meds Heat Rest.” (Id. at 1040–41.) 15 7. Corey L. Cook, D.C., submitted an APS dated October 11, 2021. Dr. Cook 16 first treated Plaintiff on October 7, 2021. He stated that Plaintiff was unable to work as 17 of August 7, 2021. Dr. Cook’s APS listed a diagnosis of lumbar radiculopathy with 18 symptoms of “moderate to severe pain + tenderness, spasm.” As to Plaintiff’s functional 19 limitations and abilities, Dr. Cook claimed that Plaintiff could not “do any work 20 functions; was unable to sit, stand, or walk more than one hour in an eight-hour 21 workday; and was unable to lift, push, or carry five to ten pounds. Dr. Cook expected 22 fundamental changes in Plaintiff’s condition in four months. As a treatment plan, Dr. 23 Cook provided: “Heat/Ice, Rest, Stretching.” (Id. at 1042–44.) 24 8. On December 6, 2021, Plaintiff advised Defendant’s representative by 25 phone that Plaintiff had not undergone any diagnostic imaging because Plaintiff’s 26 doctors “told her she would just get better with rest.” (Id. at 1087.) 27 9. After approving benefits through August 29, 2021, and refusing benefits 28 after that date due to inadequate documentation, Defendant approved STD benefits 1 through September 12, 2021. (Id. at 651; see also id. at 296, 744.) Defendant advised 2 that, if Plaintiff’s disability extended beyond that date, Plaintiff would need to submit 3 “clinical office notes including results of any laboratory tests, x-rays, or other diagnostic 4 tests that have been performed.” (Id. at 651.) Defendant warned that a doctor’s note 5 certifying the disability “is not sufficient to pay additional benefits beyond [Plaintiff’s] 6 expected recovery period.” (Id.) 7 10. As part of its continuing review of Plaintiff’s entitlement to STD benefits, 8 Defendant requested updated medical records from Drs. Guidry and Cook to ascertain 9 Plaintiff’s status. (See id. at 1086–87.) Dr. Guidry provided no records of treatment after 10 Plaintiff’s first visit on August 9, 2021. (See id. at 1096.) Dr. Cook provided records of 11 three visits on October 7, 2021, December 6, 2021, and February 8, 2022. Dr. Cook’s 12 progress notes indicated Plaintiff had a positive “[o]rtho exam” at Plaintiff’s October 7 13 and December 6 visits. Dr. Cook’s treatment plan was limited to “rest, heat and stretch 14 exercises.” (Id. at 1097–99.) 15 11. On March 7, 2022, Defendant’s clinical nurse consultant, Sue Morehead, 16 RN, reviewed the records and found no support for Plaintiff’s disability after September 17 12, 2021, stating: 18 There was no diagnostic imaging, [or] list of medications 19 prescribed, if any. The exam findings were a positive 20 [Kemp’s] test, and tenderness and muscle spasms on 21 palpation with decreased range of motion. The treatment plan 22 was rest, heat and ice, and muscle stretches. . . . The providers 23 have taken the claimant out of work from 8.6.21 through 24 2.9.22 with no medications, diagnostic testing, or referral to 25 orthopedics. 26 (Id. at 1052; see also id. at 1050–53.) 27 12. Defendant referred the file for an orthopedic review by an independent 28 physician. (Id. at 1045–46.) George Lambros, Jr., D.O., a board-certified orthopedic 1 surgeon, conducted the review. Dr. Lambros made several unsuccessful attempts to 2 speak with Drs. Guidry and Cook. Based on his review of the medical records, Dr. 3 Lambros concluded there was no medical evidence to support functional impairment 4 from September 13, 2021 to February 28, 2022. His March 18, 2022, report stated in 5 relevant part: 6 From the perspective of my specialty in orthopedic surgery, I 7 disagree with the claimant's treating provider that the 8 claimant was impaired from 9/13/21 to 2/28/22. There was no 9 complete history and physical as it pertains to the lumbosacral 10 spine and there were no diagnostic imaging studies performed 11 documenting any evidence of significant pathology of the 12 lumbar spine that would correlate to support any functional 13 impairment. 14 The kinds of examination findings important to document 15 impairment that could be found in the course of a typical 16 examination that are missing would include self-reported 17 findings of severe unrelenting low back pain with radiating 18 unilateral or bilateral upper back, buttock, hip, groin, and/or 19 leg pain. Radiation of pain with numbness and tingling [in] 20 unilateral or bilateral lower extremities. Inability to stand or 21 walk for any length of time. Pain significantly increased with 22 any activity. Feeling of movement, instability in the lower 23 back. 24 Physical findings of significant loss of spinal lumbar range of 25 motion, significant weakness of the spinal musculature and 26 upper and/or lower extremities, decreased sensation, 27 abnormal reflexes, abnormal muscle tone, atrophy of lower 28 extremity musculature, leg length inequality, spinal or lower 1 extremity deformity, abnormal gait and the necessity for 2 ambulatory assistive devices. There would need to be 3 evidence of neurologic deficit, neurogenic claudication, 4 lumbar radiculopathy, arachnoiditis, nerve root compression, 5 central canal stenosis, spondylolisthesis, or spinal instability. 6 There may be evidence that the source of primary pain 7 generator(s) are the SI joints from dysfunction, degenerative 8 joint disease, fracture, subluxation/dislocation, or sacroiliitis. 9 There was no evidence of degenerative joint disease of the hip 10 joint(s) from fracture, dislocation, avascular necrosis, femoral 11 acetabular impingement, label tear, or degenerative joint 12 disease. 13 (Id. at 1094; see generally id. at 1091–95.) 14 13. Dr. Lambros’s report set forth the types of diagnostic testing that would 15 evidence “significant spinal pathology consistent with functional impairment” as well 16 as the clinical exam findings that could also support a functional impairment. Dr. 17 Lambros did not see such tests results in Plaintiff’s medical records. (Id. at 1094.) 18 14. Dr. Lambros opined, “Based on the medical facts from the available 19 records and claim documentation obtained from the treating providers, from the 20 Orthopedic Surgery perspective, the claimant does not have any functional impairments 21 from 9/13/21 to 2/28/22.” (Id.) 22 15. By letter dated March 25, 2022, Defendant advised Plaintiff that, based on 23 the medical and vocational information received, and the review by Dr. Lambros, no 24 additional benefits were payable because, “[g]iven the medical documentation provided 25 you do not meet the diagnostic criteria for the allegedly impairing diagnosis. The 26 diagnosis is low back pain, and that is not considered an impairing diagnosis based on 27 the lack of medical documentation to support it.” The letter also advised Plaintiff of her 28 appeal rights. (Id. at 548–51.) 1 16. By letter of May 5, 2022, Plaintiff through counsel appealed Defendant’s 2 adverse STD decision. Plaintiff’s attorney advised that Plaintiff was submitting a claim 3 for LTD benefits. (Id. at 1112–13.) 4 17. During a phone call with Defendant on May 13, 2022, Plaintiff and her 5 attorney confirmed that she had not seen Dr. Guidry since August 9, 2021, that she saw 6 Dr. Cook every two months, and that she took over-the-counter Motrin three to four 7 times per week. Although Dr. Guidry prescribed Robaxin, a muscle relaxant, Plaintiff 8 advised that she did not take it because she did not like the way it made her feel. (Id. at 9 1070–73.) Plaintiff’s prescription records do not indicate she ever filled a prescription 10 for Robaxin or any other prescription from Dr. Guidry. (See id. at 1117–35.) 11 18. During the call, Plaintiff claimed that her primary disabling condition was 12 back pain, and that she could not work because sitting 10–12 hours per day and typing 13 on the computer hurt. Plaintiff said she had to change her position often, lie down, and 14 take several breaks. However, Plaintiff reported she was able to do housework, care for 15 her child, drive, and independently complete her activities of daily living. Plaintiff 16 further advised that Dr. Cook stated she could return to work in June of 2022, but that 17 she had doubts about returning to her job due to COVID-19. (Id. at 1071–73.) 18 19. Defendant referred the STD file for review by its clinical nurse consultant, 19 Beth Beumer-Anderson, RN. Nurse Anderson’s May 24, 2022, report concluded there 20 was a lack of medical documentation to support disability, stating: 21 [Plaintiff] has undergone conservative treatment measures 22 with no escalation of care. No tests have been ordered; no 23 consultations were made. And there is an overall paucity of 24 documentation regarding a physical examination that would 25 suggest she has any functional impairments associated with 26 her complaints of low back pain. 27 (AR 1062; see also id. at 1060–62.) 28 1 20. On May 27, 2022, Defendant sent a letter to Plaintiff’s attorney advising 2 that, based on the medical documentation in the STD file, Defendant was unable to 3 reverse its claim determination. (Id. at 189.) Defendant provided Plaintiff’s attorney a 4 copy of Dr. Lambros and Nurse Anderson’s reports. Defendant asked Plaintiff’s 5 attorney to submit any response to the reports and any additional medical information 6 no later than June 10, 2022. (Id. at 189–90.) On a call on June 2, 2022, Plaintiff’s 7 attorney confirmed there were no new medical records for review but that he would 8 submit a response from Plaintiff’s provider. (Id. at 1082.) 9 21. As of June 10, 2022, however, Defendant had not received any response 10 or additional records for review. (See id.) By letter of June 17, 2022, Defendant advised 11 Plaintiff’s counsel that it was upholding its prior decision to deny STD benefits after 12 September 12, 2021: 13 In summary, the medical documentation does not support Ms. 14 Gray’s claimed diagnosis of low back pain and/or lumbar 15 radiculopathy. The claim file reflects she was treated by an 16 internal medicine provider, Paul Guidry, MD, and a 17 chiropractor, Corey Cook, DC. Her treatment was rest, heat, 18 stretching exercise, Motrin and Robaxin. There were no 19 examinations related to the lumbar spine and no diagnostic 20 imaging study reports available for review. The medical 21 documentation does not support the diagnostic criteria for the 22 claimed diagnosis. Therefore, no benefits are payable beyond 23 September 12, 2021, and [denial of] Ms. Gray’s claim has 24 been upheld. 25 (Id. at 1364; see id. at 1361–66.) 26 22. With respect to Plaintiff’s LTD claim, Defendant referred the file for 27 review by another clinical nurse consultant, Jan Janisch-Hanzlik, RN. Nurse Janisch- 28 1 Hanzlik’s July 1, 2022, report noted no changes in Plaintiff’s treatment or additional 2 medical care: 3 There is no imaging such as an x-ray, MRI, or CT to confirm 4 lumbar radiculopathy. [Plaintiff] was seen by the chiropractor 5 approximately every 2 months with no indication if 6 chiropractic treatment was provided. She is being treated 7 conservatively with over-the-counter medications, rest, heat, 8 and stretches. It was not until 02/08/2022 that the 9 documentation indicated she has decreased lumbar range of 10 motion which may be in part due to her body habitus. There 11 is no evidence of an antalgic gait or use of an ambulatory aide. 12 She has not had an escalation of care, being referred to an 13 orthopedist, or pain management. 14 The restrictions and limitations are not supported. 15 (Id. at 1059; see also id. at 1057–59.) 16 23. On July 1, 2022, Plaintiff’s counsel transmitted to Defendant a letter from 17 Dr. Guidry dated June 6, 2022, which provided in substantive part: 18 Summary: The patient presented to my clinic complaining of 19 severe pain in her lower back, with tingling and numbness 20 down both her legs into her feet. The patient complained that 21 when she sits for prolonged periods, she gets severe pain and 22 debilitating lower back spasms. The patient stated that she 23 was diagnosed with degenerative disc disease of her lumbar 24 spine several years ago. The patient works as a program 25 coordinator for a mental health facility. Her occupation 26 requires her to sit for prolonged periods, occasionally up to 27 14 hours. Ms. Gray is currently under my care and is unable 28 to work. The patient is currently taking Motrin and Robaxin, 1 receiving medical and chiropractic care at our clinic. 2 (Id. at 1116; see id. at 1115.) 3 24. On July 13, 2022, Nurse Janisch-Hanzlik reviewed Dr. Guidry’s June 6, 4 2022 letter, but concluded that his letter did not change her previous determination. (Id. 5 at 1055–56.) 6 25. By letter dated July 26, 2022, Defendant advised that it was unable to 7 approve LTD benefits: 8 In summary, the medical documentation does not support 9 your claimed diagnosis of lumbar radiculopathy and there are 10 no functional impairments identified. The medical 11 documentation received and reviewed does not support an 12 inability to perform the Substantial and Material Acts of your 13 Usual Occupation. Therefore, no benefits are payable and 14 your claim has been denied. 15 (Id. at 1298; see also id. at 1296–1302.) Defendant also advised Plaintiff of Plaintiff’s 16 appeal rights. (Id. at 1299.) 17 26. By letter of August 26, 2022, Plaintiff, through counsel, appealed 18 Defendant’s adverse LTD claim decision. Counsel’s letter referenced Dr. Guidry’s June 19 6, 2022 letter. (Id. at 1210–11.) 20 27. Defendant referred the file for review by an independent, board-certified 21 orthopedic surgeon, Barry Rose, M.D. (Id. at 1002–06; see also id. at 1066–67.) Dr. 22 Rose attempted to speak with Dr. Guidry, but Dr. Guidry declined to participate in a 23 peer-to-peer call without Plaintiff’s consent. (Id. at 1003–04.) Based on his review of 24 the records, Dr. Rose concluded in his report of September 19, 2022, that there was a 25 lack of evidence supporting disabling restrictions and limitations: 26 The restrictions and limitations that the treating provider gave 27 were that the claimant could not sit for prolonged period of 28 times [sic], could not lift, carry, bend, squat or stoop based on 1 the initial work excuse that was given on 08/09/2021 and were 2 extended every two months after that period of time. These 3 limitations are not supported in the records. There is no 4 physical exam that shows the claimant’s limitations. There 5 are no physical exam findings that are consistent with her 6 having functional impairment. There are no x-rays reported. 7 There has not been an MRI done. There has not been an EMG 8 done. The claimant has not been seen by an orthopedic 9 surgeon and has not been seen by anyone in pain 10 management, and there are no physical therapy reports that 11 have been provided. It does not appear that the claimant has 12 had any treatment other than chiropractic treatments. 13 (Id. at 1004–05; see also id. at 1002–06.) Dr. Rose further noted that Plaintiff’s records 14 and treatments were not consistent with radiculopathy: “There is no medical 15 documentation of a radiculopathy. There are no physical exam findings to support 16 radiculopathy or functional impairment.” (Id. at 1006.) As a result, Dr. Rose opined that 17 Plaintiff was “not precluded from light level work.” (Id.) 18 28. Defendant referred the file for an occupational analysis by Angie Rhudy, 19 M.Ed., CRC, vocational rehabilitation specialist. In her September 27, 2022, report, Ms. 20 Rhudy concluded that Plaintiff’s job description compares to the occupation defined in 21 the eDOT as Social Work Unit Supervisor, which was sedentary in nature and required: 22 • Frequent sitting; occasional walking, standing 23 • Occasional reaching, handling, fingering, keyboard use 24 • Frequent talking 25 • Frequent near acuity, accommodation; occasional far 26 acuity 27 (Id. at 1018–19; see also id. at 1187–93.) 28 1 29. On October 5, 2022, Defendant sent a copy of Dr. Rose’s report to 2 Plaintiff’s attorney, advising that based on the evidence reviewed, Defendant was 3 unable to reverse its determination as to Plaintiff’s LTD claim. Defendant provided 4 Plaintiff an opportunity to review the report and provide a written response by October 5 19, 2022. (Id. at 975–76.) 6 30. Having received no response, on October 24, 2022, Defendant advised that 7 it was upholding its LTD claim decision: 8 In summary, the documentation does not preclude Ms. Gray 9 from performing the Substantial and Material Acts of her 10 Usual Occupation as a Coordinator as it is performed in the 11 National Economy. Therefore, no benefits are payable and the 12 denial of her benefits as of July 26, 2022, has been upheld. 13 (Id. at 849; see id. at 845–51.) 14 31. On November 10, 2022, Plaintiff’s attorney submitted a letter from Dr. 15 Guidry dated October 27, 2022. (Id. at 841–42.) Dr. Guidry’s letter provided: 16 The patient completed the ordered MRI without contrast of 17 her lumbar spine. The results were positive for L2-L3 facet 18 arthropathy with bilateral neuroforaminal stenosis; L3-L4, 19 L4-L5 and L5-S1 diffuse disc bulges, arthropathy results in 20 bilateral aubarticular recess stenosis and bilateral 21 neuroforaminal stenosis. The patient continues to have severe 22 lower back pain with spasms and tingling and numbness 23 down both of her legs into her feet. The patient can’t sit or 24 stand for prolonged periods of time. 25 (Id. at 842.) 26 32. Defendant responded by letter dated November 10, 2022: “While we 27 appreciate Dr. Guidry’s comments, we have reviewed this information previously.” (Id. 28 at 843.) 1 III. CONCLUSIONS OF LAW 2 33. The Plans are employee welfare benefit plans governed by ERISA, which 3 provides the exclusive remedy for Plaintiff’s claims. See 29 U.S.C. § 1132(a)(1)(B). 4 34. The parties agree the standard of review is de novo. (Pl.’s Opening Br. 9; 5 Def.’s Opening Br. 14.) Under this standard, a court “determines in the first instance if 6 the claimant has adequately established that he or she is disabled under the terms of the 7 plan.” Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1295–96 (9th Cir. 2010). 8 Courts must “evaluate the persuasiveness of conflicting testimony and decide which is 9 more likely true.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) 10 (en banc). “The district court’s task is to determine whether the plan administrator’s 11 decision is supported by the record, not to engage in a new determination of whether 12 the claimant is disabled.” Collier v. Lincoln Life Assurance Co. of Bos., 53 F.4th 1180, 13 1182 (9th Cir. 2022). “Accordingly, the district court must examine only the rationales 14 the plan administrator relied on in denying benefits and cannot adopt new rationales 15 that the claimant had no opportunity to respond to during the administrative process.” 16 Id. 17 35. “[T]he claimant has the burden of proving by a preponderance of the 18 evidence that [s]he was disabled under the terms of the plan.” Armani v. Nw. Mut. Life 19 Ins. Co., 840 F.3d 1159, 1163 (9th Cir. 2016). To prevail, the claimant “must proffer 20 evidence not only that she has a relevant diagnosis, but also that the illness or injury 21 precludes her from performing the tasks required by her regular occupation.” Shaw v. 22 Life Ins. Co. of N. Am., 144 F. Supp. 3d 1114, 1129 (C.D. Cal. 2015). 23 36. Plaintiff identifies several alleged defects in Defendant’s handling of her 24 claim. (See Pl.’s Opening Br. 10–16.) Notwithstanding, review is de novo, so 25 Defendant’s handling of the claim has little to no bearing on the Court’s analysis. See 26 Collier, 53 F.4th at 1182 (“When a district court reviews de novo a plan administrator’s 27 denial of benefits, it examines the administrative record without deference to the 28 administrator’s conclusions to determine whether the administrator erred in denying 1 benefits.”); cf. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 674 (9th 2 Cir. 2011) (“Procedural errors by the administrator are . . . weighed in deciding whether 3 the administrator’s decision was an abuse of discretion.” (emphasis added) (internal 4 quotation marks omitted)). 5 37. One perceived deficiency is worth discussion: Plaintiff faults Defendant 6 for declining to consider the new medical information provided in Dr. Guidry’s letter 7 of October 27, 2022, which counsel for Plaintiff provided to Defendant on November 8 10, 2022. (See AR 841–42; e.g., Pl.’s Opening Br. 10.) On November 10, 2022, 9 Defendant stated by letter from its appeals specialist that it had “reviewed this 10 information previously,” (AR 843), which is incorrect. 11 38. That error is immaterial here, though, both because procedural defects in 12 claim handling are irrelevant to de novo review, Shaw, 144 F. Supp. 3d at 1137–39; cf. 13 Salomaa, 642 F.3d at 674, and because Dr. Guidry’s October 27 letter is unreviewable 14 in the first place. The parties apparently assume the Court may consider the letter, (e.g., 15 Def.’s Opening Br. 13–14 (presenting argument on the letter); Pl.’s Opening Br. 10 16 (same)), and Defendant produced it as part of the administrative record. But Defendant 17 made a decision rejecting Plaintiff’s appeal of the adverse STD decision on June 10, 18 2022, (AR 1361–66), and a decision rejecting Plaintiff’s appeal of the adverse LTD 19 decision on October 24, 2022, (id. at 845–51). These decisions were final and concluded 20 Plaintiff’s administrative appeals. (Id. at 1364 (“At this time, Ms. Gray has exhausted 21 all administrative rights to appeal. United of Omaha Life Insurance Company will 22 conduct no further review of the claim and the claim will be closed.”); accord id. at 23 849.) Both decisions issued before Dr. Guidry penned the letter on October 27, 2022, 24 and Plaintiff produced the letter to Defendant on November 10, 2022. (Id. at 841–42.) 25 On de novo review, “the court should not review documents not submitted to the plan 26 administrator prior to its decision.” Mongeluzo v. Baxter Travenol Long Term Disability 27 Benefit Plan, 46 F.3d 938, 943 (9th Cir. 1995); see also id. at 944 (“We emphasize that 28 a district court should not take additional evidence merely because someone at a later 1 time comes up with new evidence that was not presented to the plan administrator.”). 2 Plaintiff has not offered evidence or argument to support a conclusion that Defendant’s 3 November 10 responsive letter reopened the administrative appeals and modified the 4 final decisions on Plaintiff’s claims; provided cause to supplement the reviewable 5 record with the letter, see Opeta v. Nw. Airlines Pension Plan, 484 F.3d 1211, 1217 (9th 6 Cir. 2007); or sought a remand for further development of the record in light of the 7 medical evidence postdating the final decisions, see Mongeluzo, 46 F.3d at 943. Thus, 8 the Court must determine whether Plaintiff was disabled within the meaning of the Plans 9 without regard to Dr. Guidry’s letter of October 27, 2022. 10 39. On de novo review, the Court concurs with Defendant’s decision to deny 11 STD and LTD benefits based on the lack of medical documentation supporting a finding 12 of disability within the meaning of the Plans after September 12, 2021. (AR 845–51, 13 1361–66.) 14 40. In her opening brief, Plaintiff offers one sentence of argument toward her 15 burden to prove she is disabled: “Every doctor that saw Plaintiff concluded that Plaintiff 16 could not return to work.” (Pl.’s Opening Br. 15.) The opinions of treating physicians 17 are not entitled to special deference. Black & Decker Disability Plan v. Nord, 538 U.S. 18 822, 825 (2003). But “a district court may, in conducting its independent evaluation of 19 the evidence in the administrative record, take cognizance of the fact . . . that a given 20 treating physician has a greater opportunity to know and observe the patient than a 21 physician retained by the plan administrator.” Jebian v. Hewlett-Packard Co. Emp. 22 Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1109 n.8 (9th Cir. 2003) (internal 23 quotation marks omitted). Courts often assign significant weight to treating physicians 24 for that reason. Shaw, 144 F. Supp. 3d at 1139–30 (collecting cases). “That said, when 25 a treating physician only treated the claimant for a short time or has less expertise in the 26 claimant’s condition . . . , the treating physician’s opinion may carry less weight.” 27 Veronica L. v. Metro. Life Ins. Co., 647 F. Supp. 3d 1028, 1041 (D. Or. 2022) (citing 28 Jebian, 349 F.3d at 1109). Factors informing the weight a treating physician’s opinion 1 should be assigned include “(1) the extent of the patient’s treatment history, (2) the 2 doctor’s specialization or lack thereof, and (3) how much detail the doctor provides 3 supporting his or her conclusions.” Shaw, 144 F. Supp. 3d at 1129. 4 41. Here, the treatment history is sparse: Plaintiff saw Dr. Guidry once or twice 5 in the relevant period,4 and she saw Dr. Cook once every two months.5 Neither doctor 6 appears to have a specialty relevant to the diagnosis of lumbar radiculopathy, such as 7 an orthopedic specialization. The detail contained in the physicians’ notes and records 8 is thin, and the doctors fail to connect their findings to their opinions on Plaintiff’s 9 functional limitations. Further, virtually all the information provided in the doctors’ 10 notes that supports the claimed disability rests on subjective reports by Plaintiff. The 11 opinions are too spare and too dependent on subjective reporting to be accorded much 12 significance. See, e.g., Sanchez v. Hartford Life & Acc. Ins. Co., No. 2:20-cv-03732- 13 JWH-JEM, 2022 U.S. Dist. LEXIS 159376, at *16 (C.D. Cal. Sept. 2, 2022) (“[A] 14 treating physician’s diagnosis can be discounted when it lacks supportive evidence, it 15 is contradicted by other statements and assessments of medical condition, and it is based 16 upon subjective descriptions of pain or limitations.”); Lukianczyk v. Unum Life Ins. Co. 17 of Am., 505 F. Supp. 3d 1033, 1046 (E.D. Cal. 2020) (assigning lesser weight to 18 opinions of physicians who “gave no details to support [the claimant’s] restrictions and 19 limitations”); Shaw, 144 F. Supp. 3d at 1130 (“A treating physician’s report is 20 particularly unreliable where the physician’s records do not adequately support a 21 specific diagnosis.” (internal quotation marks omitted)); id. at 1134 (finding plaintiff’s 22 burden unmet where “[t]he medical evidence is conclusory and inadequate to determine 23 Shaw’s occupational abilities”); Seleine v. Fluor Corp. Long-Term Disability Plan, 598 24 F. Supp. 2d 1090, 1102 (C.D. Cal. 2009) (“The records of Seleine’s attending physicians 25
26 4 The record does not clarify whether Dr. Guidry’s letter of June 6, 2022, followed an office visit Plaintiff made after her initial visit on August 9, 2021. (See AR 1116.) 27 5 That said, the record memorializes only three visits with Dr. Cook. (AR 1097–1101, 28 1104–06.) 1 primarily document her subjective complaints. Seleine’s attempts to elevate these notes 2 of a patient’s self-report to the status of ‘findings’ is inappropriate. . . . Rather, these 3 complaints were subject to verification by objective medical evidence.”). 4 42. The Court’s assignment of weight would not materially change if it 5 reviewed Dr. Guidry’s October 27 letter, which evinces marginally more detail than his 6 other records and offers some objective findings to support his conclusions. To wit, Dr. 7 Guidry provides a cursory summary of magnetic resonance imaging findings without 8 providing the underlying imaging, report, or diagnostic impressions. Crucially, though, 9 Dr. Guidry does not state when the imaging took place. Without temporal information 10 anchoring any objective findings to the claimed disability period, the Court cannot 11 possibly determine when and how long Plaintiff was disabled within the meaning of the 12 Plans. 13 43. The Court finds significantly more persuasive the opinions of the 14 independent reviewing physicians and nurses, particularly those of orthopedic surgeons 15 Drs. Lambros and Rose. Although courts often afford more weight to the opinions of 16 treating physicians than of non-treating physicians, “a paper review by a physician 17 retained by the plan administrator may be more reliable than the opinion of a treating 18 physician,” particularly when a “treating physician’s records do not adequately support 19 a specific diagnosis.” Shaw, 144 F. Supp. 3d at 1130 (internal quotation marks omitted). 20 Such is the case here, where unspecialized treating physicians provided conclusory 21 opinions based on a thin treatment history and minimal objective findings, and paper 22 reviewers with orthopedic specialties offered more robust analyses. The surgeons and 23 nurses identified numerous objective measures by which a diagnosis of radiculopathy 24 could be ascertained, but which were not performed by the treating physicians. They 25 noted the dearth of records of examinations and tests that might lead to findings that 26 would support the diagnosis and claimed limitations. (AR 1002–06, 1057–59, 1060–62, 27 1091–95.) 28 1 44. Other evidence in the record does not satisfy Plaintiff’s burden. The record 2 is replete with Plaintiff’s subjective complaints of back pain. (E.g., AR 1036.) Without 3 diminishing these subjective reports, the Court cannot rest a finding of disability on 4 them standing alone, without supporting objective evidence. See, e.g., McCool v. Life 5 Ins. Co. of N. Am., No. 2:17-cv-07766-RGK-JEM, 2018 U.S. Dist. LEXIS 224392, at 6 *13 (C.D. Cal. Nov. 9, 2018) (“When examining whether there is evidence of a 7 disability, the court looks to the objective medical evidence rather than relying solely 8 on a claimant’s subjective reports of pain.”); Shaw, 144 F. Supp. 3d at 1139 9 (“[S]ubjective evidence of a disabling condition is inherently less reliable than objective 10 evidence.”).6 Further, Plaintiff argues that the State of California’s award of state 11 disability insurance benefits supports a disability finding here. (Pl.’s Opening Br. 15.) 12 As Plaintiff recognizes, a finding of disability under a standard unmoored to the 13 disability definitions provided in the Plans is persuasive at best. See Biggar v. 14 Prudential Ins. Co. of Am., 274 F. Supp. 3d 954, 970 (N.D. Cal. 2017). And in any 15 event, the only evidence in the record suggesting the state determined Plaintiff was 16 disabled is a copy of a webpage evincing payments made to Plaintiff, (AR 199–201); 17 Plaintiff neither cites nor offers documentation confirming a finding of disability or 18 stating the grounds upon which that finding rests. The record of payments alone is not 19 persuasive evidence of a disability.7 20
21 6 Although the Court does not rest its analysis on an issue that went unasserted in the 22 administrative process, see Collier, 53 F.4h at 1182, the Court comments that evidence in the record showing Plaintiff was able to perform activities of daily living that require 23 functional capacity greater than what was necessary to complete the light or sedentary 24 demands of her job, (e.g., AR 1071–73), and evidence of the conservative and infrequent treatment her physicians provided her, (e.g., id. at 1096–1107), tend to 25 undermine her subjective complaints. 26 7 Plaintiff suggests the Court should reverse the denial because Defendant did not reference the award of state disability benefits in its communications denying her 27 claims. (Pl.’s Opening Br. 15.) Again, the argument is misplaced because the standard 28 of review here is de novo, not arbitrary and capricious, as was the standard in the sole, 1 45. Based on this review of the administrative record, the Court finds that 2 | Plaintiff not proven by a preponderance of the evidence that she was disabled within 3 || the meaning of the Plans after September 12, 2021. 4] IV. CONCLUSION 5 Plaintiff has not proven she is entitled to further benefits under the Plans. The 6 || Court directs the Clerk to enter judgment consistent with these findings of fact and 7 || conclusions of law and close the case. 8 9 | ITISSO ORDERED. 4, 10 lake L bears 11 | Dated: January 29, 2024 12 MARK C. SCARSI 3 UNITED STATES DISTRICT JUDGE
14 15 16 17 18 19 20 21 22 23 24 25 ©)
7 nonbinding, out-of-circuit case Plaintiff cites. McKnight-Cameron v. Bos. Mut. Life Ins. Co., No. 1:13-cv-01774-RLY-DKL, 2015 U.S. Dist. LEXIS 132681, at *21 (S.D. Ind. 28 | Sept. 30, 2015). See supra ¥ 36. 20