Kieserman v. Unum Life Insurance Company of America

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 JAMIE SHANDRO KIESERMAN, M.D., CASE NO. C21-0448-JCC 10 Plaintiff, ORDER 11 v. 12 UNUM LIFE INSURANCE COMPANY OF AMERICA, 13 Defendant. 14 15 This matter comes before the Court on cross motions filed by Plaintiff Jamie Shandro 16 Kieserman, M.D., (“Dr. Shandro”) (Dkt. No. 12) and Defendant Unum Life Insurance Company 17 of America (“Unum”) (Dkt. No. 14) seeking a final judgment from this Court under Federal Rule 18 of Civil Procedure 52. Such a motion is based on an administrative record (“AR”) created in an 19 underlying Employee Retirement Income Security Act (“ERISA”) dispute. Having thoroughly 20 considered the parties’ briefing, the relevant record, and finding oral argument unnecessary, the 21 Court hereby GRANTS Plaintiff’s motion (Dkt. No. 12) and DENIES Defendant’s motion (Dkt. 22 No. 14) for the reasons explained herein. 23 I. BACKGROUND 24 Plaintiff seeks a declaration of her right to long term disability (“LTD”) benefits. (See 25 Dkt. No. 1.) She is employed as an emergency physician at Harborview Medical Center and 26 1 associate professor of Emergency Medicine at the University of Washington. (Dkt. No. 14 at 1.) 2 In 2018, she was diagnosed with Stage IV metastatic breast cancer, which metastasized to her 3 liver and rib. (Dkt No. 12 at 4.) She went on full medical leave for a year, undergoing treatments 4 including chemotherapy, a lumpectomy, hormone therapies, and a liver lesion ablation. (Id.) 5 Plaintiff stated that after consulting her oncologist, Dr. Linden, who recommended a 50% 6 schedule without night shifts, she returned to work on a reduced schedule in October 2019. (Id. 7 at 4–5.) 8 A. The Policy 9 At all relevant times, Plaintiff was insured through her employer under a long term 10 disability (“LTD”) plan. (Dkt. No. 12 at 3.) Unum funds and insures the plan’s benefits through 11 Policy No. 423840 (“the Policy”). (Dkt. No. 1 at 4.) A person is “disabled” under the Policy 12 when due to “sickness or injury” she is either “unable to perform the material and substantial 13 duties of [her] regular Occupation” or has a “20% or more loss in [her] indexed monthly earnings 14 while working in [her] regular occupation.” (Dkt. No. 12 at 3.) The Policy defines “regular 15 occupation” as: 16 [T]he occupation you are routinely performing when your disability begins. . . . For physicians, “regular occupation” means your specialty in the practice of 17 medicine which you are routinely performing when your disability begins. 18 (Dkt. No. 14 at 3.) “Material and substantial” duties are those that “are normally required 19 for the performance of your regular occupation; and cannot be reasonably omitted or 20 modified.” (Id.) 21 B. Plaintiff’s LTD Benefits Application 22 Unum found Plaintiff totally disabled as of October 8, 2018. (Dkt. No. 12 at 5.) After she 23 returned to work in October 2019, Unum concluded she was “presently working to max 24 capacity” and continued to pay benefits offset by her earnings. (Id.) In June 2020, Unum 25 concluded it should determine “the occupational demands” of Plaintiff’s work. (Id. at 6.) Unum’s 26 1 vocational consultant identified the following job duties: 2 Evaluates patients, performing examinations to determine medical problems, using physical findings, diagnostic images, laboratory test results, and patient’s 3 statements as diagnostic aids. Administers or prescribes treatments and drugs. 4 (Id.) Physical demands were found to be “[l]ight.” (Id.) Relying on these findings, Unum Nurse 5 Lynn Gorman concluded Plaintiff was “not functionally limited other than some fatigue” and “no 6 clinical evidence” supported her work restrictions. (Id.) 7 On July 8, 2020, Unum’s-site physician (“OSP”) endorsed Nurse Gorman’s opinion. (Id.) 8 Dr. Linden disagreed when the OSP called her to outline his opinion. (Id.) On July 24, 2020, 9 another OSP wrote a report concluding that there was no evidence precluding Plaintiff from full 10 time “light work” as described in Nurse Gorman’s list of “physical demands.” (Id. at 7.) Unum’s 11 Designated Medical Officer agreed. (Id.) On July 31, 2020, Unum terminated Plaintiff’s benefits, 12 explaining: 13 There is no evidence to currently preclude full-time work. . . . You have had no major side[] effects noted from your chemotherapy. Your main complaint has been fatigue, 14 yet it is documented that you are very active personally. You are currently working 5 nine-hour shifts/week plus teaching. Your prior work involved 9 nine-hour 15 shifts/week[1] and the same teaching. In addition, you were able to vacation in Europe skiing in the Alps with your family. . . . Dr Linden documented in your April 27, 16 2020 (most recent oncology note) that you were feeling well overall, exercising and 17 doing sweaty Yoga. . . . Dr Linden gave a performance status of ECOG “ZERO” i.e. no restrictions and limitations at that time. 18 (Id. at 8.) Plaintiff appealed, including a declaration from Dr Linden, who opined: 19 (1) [Dr. Shandro] does not have the capacity to perform the daunting and exhausting 20 work of an Emergency Physician on a full-time basis due to her ongoing fatigue from having cancer, and undergoing treatment, currently with palbociclib and letrozole; (2) 21 were she to work full-time, that would most likely cause yet more severe fatigue, resulting in the inability to work at all; (3) she is immuno-suppressed and more prone 22 to infection due to her neutropenia and fatigue (from past and current therapy), and the further fatigue and stress that would result from additional work will only 23 heighten her susceptibility to infection and illness; and (4) pushing herself beyond her 24 capacity would hazard her health, putting her at heightened risk for not being able to adhere to the dose and dose density of the current therapy, which then puts her at risk 25 for recurrence of the cancer. This is not a trivial risk, she had stage IV cancer with

26 1 Plaintiff asserts that she works five nine-hour shifts per month, not per week. (Dkt No. 12 at 8) biopsy proven liver and bone met[astisis]. 1 (Id. at 8–9.) Dr. Linden disagreed with Unum’s summary of Plaintiff’s job duties and physical 2 demands and noted the ECOG scale “was not designed or intended to determine vocational 3 capacity.” (Id. at 9.) 4 Plaintiff asserted that her 50% schedule allowed her to “be well rested and functioning at 5 my best in order to be a safe and effective emergency physician.” (Id. at 13.) She described the 6 significant effects of her fatigue on her ability to meet the physical and cognitive demands of her 7 work and day-to-day life. (Id.) 8 In response to her appeal, Unum’s in-house doctor conducted a review. (Id.) His report 9 concluded “the insured’s reported inability to return to full-time work. . . appears to be related to 10 her perceived risk of intolerance to full-time work and night shifts due to fatigue rather than 11 actual demonstrated intolerance.” (Id. at 14.) Dr. Linden responded that the work restrictions 12 “are not based on Dr. Shandro’s perception of risk. They are based on my experience, over 20 13 years of work in medical oncology.” (Id.) Plaintiff objected to the characterization of her work as 14 “light.” (Id. at 16) On April 5, 2021, Unum denied Plaintiff’s appeal. (Id.) 15 II. DISCUSSION 16 A. ERISA Standard of Review 17 ERISA allows a plan participant “to recover benefits due to him under the terms of his 18 plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits 19 under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). District courts review a plan 20 administrator’s denial of benefits “under a de novo standard unless the benefit plan gives the 21 administrator or fiduciary discretionary authority to determine eligibility for benefits.” Firestone 22 Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The parties agree that the Court should 23 review Unum’s benefits decision de novo. (Dkt. Nos. 12 at 16, 14 at 10 n. 3.) 24 Under de novo review, “‘[t]he court simply proceeds to evaluate whether the plan 25 administrator correctly or incorrectly denied benefits.’” Opeta v. Nw. Airlines Pension Plan for 26 1 Cont. Emps., 484 F.3d 1211, 1217 (9th Cir. 2007) (quoting Abatie v. Alta Health & Life Ins. Co., 2 458 F.3d 955, 963 (9th Cir. 2006)). The Court’s review is limited to the evidence that was before 3 the plan administrator except “when circumstances clearly establish that additional evidence is 4 necessary to conduct an adequate de novo review.” Mongeluzo v. Baxter Travenol Long Term 5 Disability Ben. Plan, 46 F.3d 938, 943 (9th Cir. 1995). 6 The Court’s de novo review “can best be understood as essentially a bench trial ‘on the 7 papers’ with the District Court acting as the finder of fact.” Muller v. First Unum Life Ins. Co., 8 341 F.3d 119, 124 (2d Cir. 2003). When considering a Rule 52 motion for judgment, the court 9 will ask “not whether there is a genuine issue of material fact, but instead whether [the claimant] 10 is disabled within the terms of the policy.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094– 11 95 (9th Cir. 1999). The court “can evaluate the persuasiveness of conflicting testimony and 12 decide which is more likely true.” Id. Thus, the court may make factual findings, evaluate 13 credibility, and weigh the evidence before it to determine whether the administrator correctly or 14 incorrectly denied benefits. See Anderson v. Liberty Mut. Long Term Disability Plan, 116 F. 15 Supp. 3d 1228, 1231 (W.D. Wash. 2015). In evaluating the persuasiveness of each party's case, 16 the court necessarily must make reasonable inferences where appropriate. Oldoerp v. Wells 17 Fargo & Co. Long Term Disability Plan, 12 F. Supp. 3d 1237, 1251 (N.D. Cal. 2014). When 18 conducting a de novo review of the record, the court does not give deference to the claim 19 administrator’s decision. Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1295–96 (9th Cir. 20 2010). 21 A plaintiff challenging a benefits decision under 29 U.S.C. § 1132(a)(1)(B) bears the 22 burden of proving entitlement to benefits by a preponderance of the evidence. Id. at 1294. 23 B. Benefits Determination 24 After an “independent and thorough inspection” of the record and the benefits decision, 25 the Court finds that Unum incorrectly denied LTD benefits. Silver v. Executive Car Leasing 26 Long-Term Disability Plan, 466 F.3d 727, 728 (9th Cir.2006). 1 Dr. Linden and Unum’s reviewing providers fundamentally disagree over whether Plaintiff’s 2 diagnosis and cancer treatments prevent her from working full time as an emergency physician and 3 professor. Dr. Linden opines that prescription side effects and fatigue from cancer render Plaintiff 4 incapable of full-time work, and that doing so would risk infection, illness, cancer recurrence, and 5 possibly, her ability to work at all. (Dkt. No. 12 at 8–9.) Unum’s reviewing providers counter that the 6 record does not support limitations on full-time work, and that concerns regarding fatigue are 7 speculative. (See Id. at 14 (discussing the “perceived risk of intolerance).) 8 The Court finds the reports of Unum’s reviewing providers less persuasive than the 9 conclusions and opinions of Plaintiff’s treating oncologist. Unum’s medical providers never 10 examined Plaintiff in person. There is no “treating physician rule” in ERISA cases. Black & 11 Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). But this does not preclude a district 12 court, engaging in de novo review, from evaluating and giving appropriate weight to a treating 13 physician’s conclusions, where reliable and probative. Reetz v. Hartford Life and Accident Ins. 14 Co., 294 F. Supp. 3d 1068, 1083 (W.D. Wash. 2018). Here, not only was Dr. Linden able to 15 personally observe Plaintiff’s progression and credibility as her treating physician, but as her 16 treating oncologist. Her declaration in support of Plaintiff’s appeal outlines her many 17 qualifications, including her board certification in medical oncology and her position as 18 Associate Program Director of the Medical Oncology and Hematology Fellowship Program at 19 Fred Hutchinson Cancer Research Center and UW Medicine. (AR 1229.) Her specialty, 20 experience, and her relationship with the Plaintiff over the duration of treatment lend additional 21 credibility to her conclusions. See Oldoerp, 12 F. Supp. 3d at 1250 (“[W]hen an in-person 22 medical examination credibly contradicts a paper-only review conducted by a professional who 23 has never examined the claimant, the in-person review may render more credible conclusions.”). 24 In contrast, Unum’s reviewing providers did not examine Plaintiff, had minimal contact with 25 Plaintiff’s treating physicians, and the record does not indicate any special training in oncology. 26 Likewise, the Court finds Dr. Linden and Plaintiff’s assessments of her job tasks and 1 physical demands more compelling than the lists provided by Unum’s vocational consultant. 2 While the job certainly involves typing, walking, and lifting occasional weight, such descriptions 3 fail to account for the obvious cognitive and physical demands of work as an emergency 4 physician. Indeed, the progress notes convey concern over “UW emotional and physical stress of 5 working” prior to her return to work. (Dkt. No. 14 at 4.) Unum’s argument that the record does 6 not evidence an inability to work full time at such a highly demanding job is unpersuasive. As 7 discussed, the record contains a serious cancer diagnosis, cancer treatment drugs known to cause 8 fatigue and compromised immunity, low or borderline white blood cell counts, and the assertions 9 of both Plaintiff and her treating oncologist that they discussed her fatigue’s interference with 10 work. 11 Unum also claims the restriction to a 50% schedule was an “after the fact” opinion that 12 should be given little weight. (Id. at 5.) Unum argues Dr. Linden’s “progress notes contain no 13 reference whatsoever to any discussion between Plaintiff and Dr. Linden regarding full-time 14 work, even on a trial basis.” (Id.) Further, it notes that on an October 2019 health care provider 15 form Dr. Linden “checked a box indicating that Plaintiff “CAN now perform all the duties of the 16 CURRENT job with proposed modifications” with no mention of part time work. (Id.) And, 17 Unum claims that Dr. Linden’s response to Unum’s termination of benefits is the first document 18 where Dr. Linden states that Plaintiff can work only a 50% schedule. Plaintiff says this summary 19 is misleading. (Dkt. No. 20 at 4.) The Court agrees. 20 The primary function of medical records is to promote communication and recordkeeping 21 for health care personnel—not to provide evidence for disability determinations. Orn v. Astrue, 495 22 F.3d 625, 634 (9th Cir. 2007). We therefore need not find the modification mentioned in every 23 progress note or report. When viewed in its entirety, the record supports finding the work 24 restriction was not put in place or fabricated after Plaintiff’s LTD benefits were terminated. 25 Around the same time as October 2019 health care provider form, Dr. Linden filled out another 26 such form where she checked a box indicating Plaintiff could work “part time” until “6/30/20.” 1 (Dkt. No. 14 at 5.) Unum itself concluded in October 2019 after Plaintiff returned to a reduced 2 schedule that she was “presently working to max capacity,” and it continued to pay benefits offset 3 by her earnings. (Dkt. No. 12 at 5.) Her chart notes from December 2019 onward note Plaintiff was 4 working at 50%. (Dkt. No. 20 at 4.) It was not until June 2020, near the date Dr. Linden had 5 marked on the form indicating a part-time work restriction, that Unum began scrutinizing 6 Plaintiff’s benefits. (Dkt. No. 12 at 6.) When Unum contacted Dr. Linden before terminating the 7 benefits, she indicated Plaintiff could not increase her work hours. (Id.) Dr. Linden asserts, 8 consistent with this record, that she discussed the 50% work schedule during her consultation about 9 Plaintiff’s return to work. (Id. at 3.) The Court has no reason to doubt her veracity.2 10 Unum stresses the lack of evidence that Plaintiff “tried and failed one or more attempts of 11 full-time work,” which its reviewing doctor said “would be expected prior to concluding that 12 fatigue would limit full-time work.” (Dkt. No. 14 at 9.) Unum provides no authority from the 13 Policy or case law requiring Plaintiff to attempt to work full time before a treating oncologist 14 could sufficiently determine that her cancer and treatments prevented her from safely doing so. 15 Dr. Linden expressly considered this, concluding “I have sufficient confidence in my clinical 16 judgment that I do not find it necessary to subject Dr. Shandro to a ‘trial of full-time work and/or 17 a trial of night shift work,’ as Dr. Norris proposes. Primum non nocere.” (Dkt. No. 12 at 15.) The 18 Court agrees. 19 Finally, Unum devotes much of its briefing to describing Plaintiff’s ability to exercise and 20 recreational vacations she took during the coverage period. (See Dkt Nos. 14 at 2, 3, 4, 9, 14, 15; 21 21 at 2, 3, 5, 8.) This focus is misplaced. As Plaintiff argues, she was advised by her treating 22

2 Unum asserts in its motion that Plaintiff is working “90% or more of the hours she worked 23 previously, but has replaced one day of clinical work per week with one day of teaching work.” 24 This assumes that Plaintiff works 8 hours on each of her teaching days. (Dkt. No. 14 at 6 n.1.) Plaintiff states that this calculation is incorrect and points out that Unum never raised this 25 argument when terminating her benefits, nor is it contained within the record. (Dkt. No. 20 at 3.) As it was never previously disputed that Plaintiff was actually working at 50%, the Court 26 declines to consider this new argument based upon assumptions outside of the record. 1 physician to exercise in order to achieve optimal treatment outcomes, and most of the travel Unum 2 mentions occurred before she began her current medications or returned to work. (Dkt. No. 12 at 3 9–10.) In any case, that Plaintiff is able to exercise, enjoys vacations with her family, and was able 4 to return to work part-time in no way invalidates her claim—the Policy did not require her to be 5 fully disabled, but “disabled” as defined in specific terms. Dr. Linden notes that while she advises 6 all patients to exercise, 7 I reduced Dr. Shandro’s Palbociclib dosage from 125mg to 100 mg because her white blood cell count had become dangerously low. We can see from the regular 8 diagnostic testing that Dr. Shandro’s blood counts are all borderline. This does not mean she cannot exercise. It means that when she exercises or works, she will be 9 more tired than if her counts were normal. . . . The fatigue of continuous treatment is real, and merits activity titration. 10 (Id. at 15.) Despite her recreational activity, the record as a whole supports a finding that Dr. Shandro is 11 “unable to perform the material and substantial duties of her regular Occupation.” (Dkt. No. 12 at 3.) 12 Plaintiff has a diagnosis of Stage IV breast cancer, which carries a 27% five-year survival 13 rate. (Dkt. No. 20 at 2.) The record contains objective information about that diagnosis, as well 14 as the known side effects of medications she is undisputedly taking (including fatigue and 15 immunosuppression) that support her oncologist’s opinions. She and her oncologist agreed that 16 limiting her work hours was necessary for her to safely return to work. Plaintiff adequately 17 established that she could not safely perform the high-level cognitive, emotional, and physical 18 tasks normally required for a full-time emergency physician and associate professor of 19 emergency medicine. Accordingly, the court is persuaded that Plaintiff, more likely than not, is 20 disabled under the LTD plan’s terms and is therefore entitled to additional benefits under the 21 Policy. 22 I. CONCLUSION 23 For the foregoing reasons, the Court FINDS that Plaintiff is disabled as that term is 24 defined in the Policy administered by Unum. Accordingly, Plaintiff’s motion (Dkt. No. 12) is 25 GRANTED and Defendant’s motion is DENIED (Dkt. No. 14). The Clerk of Court is 26 1 DIRECTED to enter judgment in favor of Plaintiff and against Defendant. 2 DATED this 6th day of December 2021. A 3 4 5 John C. Coughenour 6 UNITED STATES DISTRICT JUDGE

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