1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TAJAMALA LESTER, Case No. 19-cv-01490-EMC
8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR JUDGMENT AND GRANTING DEFENDANT’S CROSS- 10 U.S. ROCHE HEALTH AND WELFARE MOTION FOR JUDGMENT BENEFITS VEBA PLAN, 11 Docket Nos. 38, 39 Defendant. 12 13 14 I. INTRODUCTION 15 Plaintiff Tajamala Lester brought this lawsuit after her long-term-disability benefits were 16 cancelled following a finding by the plan administrator, Liberty Life Insurance Company of 17 Boston (“Liberty”). The plan is funded by U.S. Roche Health and Welfare Benefits Veba Plan 18 (“Roche”). After Ms. Lester initially became disabled, Roche provided her with short-term- 19 disability benefits. When the short-term benefits expired, Roche began paying Ms. Lester long- 20 term benefits. However, once Liberty determined that Ms. Lester was no longer disabled, Roche 21 terminated her benefits altogether. Ms. Lester disputed Liberty’s finding, but Liberty upheld the 22 decision on appeal. This lawsuit followed. Both parties now seek judgment in their favor under 23 Federal Rule of Civil Procedure 52. 24 For the reasons discussed below, this Court DENIES Ms. Lester’s motion for judgment; 25 the Court GRANTS Roche’s motion for judgment in its favor because the decision to terminate 26 Ms. Lester’s benefits was not arbitrary and capricious. 27 1 II. BACKGROUND 2 A. Factual Background 3 The following facts are pled in Ms. Lester’s operative complaint. Ms. Lester worked for 4 Genentech. Docket No. 10 (“FAC”) at ¶ 5. When she began her employment, she considered the 5 work “difficult and challenging” and “she found the job to be drastically different from what she 6 expected[.]” Id. According to the FAC, this work environment caused her “serious health 7 concerns” such as depression, anxiety, pneumonia, insomnia, and cognitive decline. Id. ¶¶ 5–6. 8 Because of these psychological and physical manifestations, on September 7, 2017, Ms. 9 Lester went on leave at the advice of her doctor. Id. ¶¶ 6–7. During this leave, she was “disabled 10 and unable to work as a result of major depressive disorder, generalized anxiety, and . . . mild 11 cognitive impairment.” Id. ¶ 11. Roche paid Ms. Lester short-term-disability (“STD”) benefits 12 from October 2, 2017 to March 5, 2018. Id. ¶ 12. 13 At the expiration of her STD benefits, her condition improved such that she could return to 14 work, but she maintained that, pursuant to the terms of Roche’s Long-Term-Disability Plan (the 15 “Plan”), she was unable to return to her “own occupation.” Id. ¶ 8. Accordingly, Roche awarded 16 Mr. Lester long-term-disability (“LTD”) benefits beginning March 5, 2018, for a maximum 24- 17 month period. Id. However, on October 19, 2018, Liberty determined that Ms. Lester was no 18 longer disabled within the meaning of the Plan and ceased paying her LTD benefits retroactively 19 from September 30, 2018. Id. ¶ 13. 20 B. Administrative And Procedural Background 21 On December 31, 2018, Ms. Lester sought review of Liberty’s finding. Id. ¶ 14. As part 22 of the review process, Ms. Lester’s medical records were examined by medical reviewers retained 23 by Liberty. Id. ¶ 15. Liberty subsequently denied her appeal by “determining that there was 24 insufficient ‘diagnostic’ testing to support her disability.” Id. 25 Ms. Lester claims that Liberty erroneously made this determination notwithstanding her 26 reporting of continued symptoms, no improvement in cognitive abilities, and that she was “unable 27 to repeat her neuropsychological evaluation within less than a year from the prior testing.” Id. ¶ 1 the Plan. Id. ¶ 17. 2 Ms. Lester filed her complaint on March 22, 2019. Docket No. 1. She filed an amended 3 complaint on April 11, 2019. Docket No. 10. On March 5, 2020, Ms. Lester moved for judgment 4 in her favor under Federal Rule of Civil Procedure 52. Docket No. 38 (“Lester Mot.”). Roche 5 filed its cross-motion for judgment on March 26, 2020. Docket No. 39 (“Roche Mot.”). 6 III. LEGAL STANDARD 7 The Plan administered by Liberty is governed by the Employee Retirement Income 8 Security Act (“ERISA”). A participant in an ERISA plan may bring a civil action to recover 9 benefits, to enforce rights, or to clarify future rights under the terms of the Plan. The default 10 standard to ERISA review is de novo, unless the Plan grants the plan administrator 11 discretion. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999). Here, the Plan 12 affords Liberty such discretion, so the abuse-of-discretion standard applies.1 If a structural 13 conflict exists, however, then the Court cannot rely solely on any reasonable basis in affirming the 14 plan administrator’s decision. See Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 15 673 (9th Cir. 2011). The parties agree that no structural conflict exist. 16 Thus, in the absence of a conflict, judicial review of a plan administrator's benefits 17 determination involves a straightforward application of the abuse-of-discretion standard. Montour 18 v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 629–30 (9th Cir. 2009) (citing Boyd v. Bert 19 Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178–79 (9th Cir.2005)). Although Ms. 20 Lester contends one of the medical reviewers relied upon by Roche was financially biased, she 21 does not contend there was any structural conflict of interest on the part of the plan administrator, 22 Liberty. “[W]here there is no risk of bias on the part of the administrator, the existence of a 23 ‘single persuasive medical opinion’ supporting the administrator's decision can be sufficient to 24 affirm, so long as the administrator does not construe the language of the plan unreasonably or 25 render its decision without explanation. Id. (citing Boyd, 410 F.3d at 1179). “In these 26
27 1 Here, the parties are in accord that California Insurance Code section 10110.6(a)—which voids 1 circumstances, the plan administrator's decision can be upheld if it is ‘grounded on any reasonable 2 basis.’” Id. at 629 (quoting Sznewajs v. U.S. Bancorp Amended & Restated Supplemental Benefits 3 Plan, 572 F.3d 727, 734–35 (9th Cir. 2009)) (emphasis in original). Stated differently, the 4 decision may be upheld if it is not “(1) illogical, (2) implausible, or (3) without support in 5 inferences that may be drawn from the facts of the record.” Salomaa, 642 F.3d at 676 (quoting 6 United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)).2 7 IV. DISCUSSION 8 Both parties move for judgment under Rule 52. Ms. Lester argues that Roche abused its 9 discretion when it terminated her benefits after Liberty denied her claim and found that she was 10 not disabled under the Plan. Specifically, she makes two arguments: (1) Liberty laid out a 11 definition for “disabled” that was impossible to satisfy; and (2) Liberty hired medical reviewers 12 who failed to independently and properly analyze her cognitive impairment. Roche maintains 13 that its decision to terminate benefits was appropriate, and Liberty’s finding was supported by the 14 record. 15 A. The Plan’s Standard for Demonstrating Disability 16 Ms. Lester protests the Plan’s “impossible” standard for demonstrating disability. Lester 17 Mot. at 8. She argues that Liberty’s rationale for terminating her benefits was because she failed 18 to present a more-recent neuropsychological examination, after submitting one in February 2018. 19 Id. She contends it was impossible for her to provide a new examination within twelve months of 20 her last exam (February 2018). Id. Roche responds that Liberty’s finding was not based on the 21 absence of an updated exam, nor is there any evidence in the record that she was barred from 22 repeating a neuropsychological exam within a twelve-month period. To the contrary, it argues that 23 the decision was based on a review of all her medical records and information, which revealed that 24 she was not disabled within the meaning of the Plan. 25
26 2 While Ms. Lester’s brief argues that, under Kearny, this Court must evaluate the persuasiveness of conflicting testimony and decide which is more deserving of credence, Kearny ultimately 27 applied the de novo standard of review, so it does not govern here. See Kearney, 175 F.3d at 1090 1 Under the Plan,
2 Disability or Disabled means you (a) are unable to perform the Material and Substantial Duties of your Own Occupation due to 3 your Sickness, pregnancy, or Injury; (b) have 20% or more loss in your Indexed Monthly Earnings due to that Sickness, pregnancy, or 4 Injury; and (c) are under the Regular Care of a Doctor for that Sickness, pregnancy, or Injury. After 24 months of receiving LTD 5 benefits, however, you will be considered “Disabled” only if you are unable to perform the duties of any Gainful Occupation for which 6 you are reasonably fitted by education, training or experience due to that same Sickness or Injury. The loss of a professional or 7 occupational license or certification does not, in itself, constitute a Disability.” 8 9 Docket No. 40 (“Odgaard Decl.”), Ex. B at ROCHE000119 (emphasis in original). “Own 10 Occupation means the Covered Person’s occupation that he was performing when his Disability 11 or Partial Disability began. For the purposes of determining Disability under this policy, Liberty 12 will consider the Covered Person’s occupation as it is normally performed in the national 13 economy.” Id. at ROCHE000121 (emphasis in original). Additionally, under the Plan, “Sickness 14 is any disorder of your body or mind, but excluding any Injury, pregnancy including abortion, 15 miscarriage or childbirth.” Id. at ROCHE000121 (emphasis in original). Finally, ”Injury is a 16 bodily injury that is the direct result of an accident not related to any other cause.” Id. at 17 ROCHE000120 (emphasis in original). 18 As stated above, Ms. Lester began receiving LTD benefits on March 6, 2018. In a letter 19 confirming Ms. Lester LTD benefits eligibility for a 24-month maximum period, Liberty also 20 stated that it “will continue to review your claim and request medical documentation to evaluate 21 your continued eligibility for benefits. Please note that approval at this time does not guarantee 22 payments through the maximum benefit duration.” Id., Ex. I at ROCHE000867 (emphasis added). 23 As Ms. Lester correctly notes, “[c]onditioning an award on the existence of evidence that 24 cannot exist is arbitrary and capricious.” Salomaa, 642 F.3d at 678. However, nothing from 25 Liberty’s initial decision or subsequent decision on appeal indicates—expressly nor impliedly— 26 that it was conditioned on Ms. Lester’s requirement to submit a repeat examination (which, 27 according to Ms. Lester, she could not take). Further, this Court is unable to find anything in the 1 examination; indeed, at the hearing, counsel for Ms. Lester simply stated—without record 2 support—that a 12-month bar on neuropsychological re-evaluation was an industry standard. 3 Thus, nothing in the Plan or Liberty’s denial indicates that an impossible standard was applied. 4 As explained below, Liberty instead relied on Ms. Lester’s medical reports, as well as independent 5 medical reviewers’ opinions to conclude that she was able to return to work. 6 B. Liberty’s Review of Ms. Lester’s Medical Records 7 Ms. Lester argues that Liberty’s medical reviewers were biased (because they were 8 retained by Liberty) and failed properly to recognize her cognitive impairment. Roche, on the 9 other hand, contends that Liberty’s review of Ms. Lester’s medical reviews was thorough and 10 independent, and supports the finding that she could return to work. 11 In reviewing the reasonableness of the administrator’s determination, the Court should 12 consider factors such as the quality and quantity of the medical evidence, whether the plan 13 administrator commissioned an in-person medical review or simply relied on the claimant's 14 existing medical records, whether the administrator provided its independent experts with all 15 relevant evidence, and whether the administrator considered a contrary disability determination by 16 the Social Security Administration. Montour, 588 F.3d at 630 (citing Metro. Life Ins. Co. v. 17 Glenn, 554 U.S.105, 118 (2008)). To the extent the party challenging the determination contends 18 there was a conflict, “the party claiming a conflict . . . [must] produce evidence of a financial 19 conflict sufficient to warrant a degree of skepticism.” Demer v. IBM Corp., 835 F.3d 893, 902 20 (9th Cir. 2016) 21 1. Ms. Lester’s Job Title and Responsibilities 22 Ms. Lester’s job title at Genentech was Market Analysis and Strategy Manager. See 23 Odgaard Decl., Ex. D (job description). She began working for Genentech in this position on 24 September 5, 2015, until her termination on September 11, 2018. As relevant here, Ms. Lester’s 25 job duties that required cognitive performance were as follows:
26 Responsible for providing analysis, synthesis, providing guidance for commercial, medical and government affairs, acting as a 27 strategic advisor, leveraging market expertise, applying technical accounting for market research impact, contributing foundational 1 skills, understanding competitive drivers and developing competitive strategies, leading competitive threat assessment to 2 develop rigorous team assumptions, reading group and assessing team needs, leadership, partner and collaboration, resource planning, 3 meetings, travels, up to 20–25% travel, regularly contributing to knowledge management capabilities, regularly assessing partnership 4 and quality of work. This position requires to be flexible during normal working hours as required by the team and weekend required 5 during congress travel. 6 Id. at Ex., M. 7 According to the record, Liberty made its finding that Ms. Lester was not disabled based 8 on her medical records, reports from her treating physicians, and reports from reviewing 9 physicians that were hired by Liberty. The record reveals the following medical evidence 10 regarding Ms. Lester’s disability status and her ability to return to her own occupation as a Market 11 Analysis and Strategy Manager. 12 2. Ms. Lester’s Treating Physicians 13 a. Dr. Nancy Canning Psy.D (neuropsychology) 14 In February 2018, Ms. Lester’s treating neuropsychological physician, Dr. Nancy Canning, 15 Psy.D., created a report based on two neuropsychological examinations administered in that same 16 month. Docket No. 38-1 (“Benham-Baker Decl.”), Ex. 4. Dr. Canning’s report begins by 17 explaining that Ms. Lester was “referred by her PCP to evaluate her cognitive and emotional status 18 after a nearly 6 month leave of absence from work due to onset of severe depression and anxiety in 19 September 2017.” Id. The referral was made by Dr. Nishi Bhopal, one of Ms. Lester’s treating 20 physicians. This was Ms. Lester’s first and only time being evaluated by Dr. Canning. Ms. Lester 21 points to Dr. Canning’s notes indicating that she had a “significant decrease in performance in 22 most domains of functioning.” Id. at 5. Specifically as to Ms. Lester’s cognitive ability, the report 23 found:
24 Word finding difficulties. Per manager, using more “general” instead of specific language of biotech field. She was using the 25 notes function in PowerPoint presentations to help cue herself, but she tended to actually read the notes instead of speaking 26 spontaneously (also commented on by supervisor). Trouble navigating to familiar places. Problems focusing and sustaining 27 attention, including during reading that results in reduced carryover. in 2017 noted that the patient had difficulty applying learning and 1 generalizing from details. She also has been noted in conversation and presentations to reply with non-sequiturs. She apparently was 2 advised that she would first have to excel in her current position before moving upward in the organization. 3 4 Id. Dr. Canning’s findings go on to state:
5 Speed of information processing was notably slowed. Visuospatial skills and performance on all tasks that could not be verbally 6 mediated was very poor. She had a great deal of difficulty organizing and integrating information. She failed to implement 7 learning strategies that might have improved her long term recall. Her level of errors across the evaluation was very high. When she 8 completed self report inventories on symptoms of anxiety and depression, I asked her to rate her symptoms both several months 9 ago and currently. She reported great reduction in her symptoms and thought she was close to baseline. Although insight into her 10 emotional functioning is quite limited, depression and/or anxiety alone would not account for her pattern or performance. 11 12 Id. Ms. Lester performed a number of cognitive assessments with an ultimate scorecard of forty- 13 three (43) categories. In these categories, she scored “High Average” six times; “Average” fifteen 14 times; “WNL” (i.e., within normal limits) five times; “Low Average” eleven times; “Mildly 15 Impaired” four times; and “Impaired” two times.3 Id. As a result, Dr. Canning recommended that 16 Ms. Lester “should not return to work until she has been worked up for differential diagnosis of 17 neurological versus metabolic versus psychiatric etiology.” Id. Moreover, she recommended that 18 Ms. Lester “should work with her medical team to assess her readiness to return to work at this 19 time, and particularly to the same work environment pre-major depressive episode. If she does 20 return to her position, it should be on a paced schedule to gradually work back up to the demands 21 of full time employment after a 6-month leave. We discussed starting with 4 hours per day 3 days 22 a week (M-W-F, not consecutive days).” 23 Although Dr. Canning conducted a neuropsychological exam of Mr. Lester, the February 24 3 Dr. Canning’s findings are based on Ms. Lester’s performance on the following clinical tests: 25 Animal Naming, Beck Anxiety Inventory, Beck Depression Inventory-II, California Verbal Learning Test-II, Controlled Oral Word Association Test, Dot Counting Test, Finger Tapping 26 Test, Grooved Pegboard Test, Hooper Visual Organization Test, Judgment of Line Orientation, Naming subtest from Neuropsychological Assessment Battery, Paced Serial Attention Test (Rao 27 version), Rey 15-Item test, Rey Complex Figure Test, Ruff 2&7 Selective Attention Test, Ruff 1 2018 examination did not measure Ms. Lester’s cognitive symptoms against her job duties. The 2 only analysis of job-readiness are two notations relate to comments from Ms. Lester’s manager at 3 Genentech: (1) “[p]er manager, using more ‘general’ instead of specific language of biotech field. 4 She was using the notes function in PowerPoint presentations to hep cue herself, but she tended to 5 actually read the notes instead of speaking spontaneously”; and (2) “[a]lso per manager’s annual 6 reviews, in 2016 noted decreased carryover, and in 2016 noted that [Ms. Lester] had difficulty 7 applying learning and generalizing from details. She has been noted in conversation and 8 presentations to reply with non-sequiturs. She apparently was advised that she would first have to 9 excel in her current position before moving upward in the organization.” Id. 10 In sum, Dr. Canning does not definitively state that Ms. Lester is unable to work, nor does 11 Dr. Canning declare that Ms. Lester is disabled from working her then current job. While the 12 February 2018 exam documents some cognitive-impairment symptoms, the ultimate 13 recommendation is that Ms. Lester receive a differential diagnosis of the cause of problems before 14 going back to work and that she “work with her medical team to assess her readiness to return to 15 any work at this time” (id.); Dr. Canning does not say she is not capable of working. 16 b. Dr. Nishi Bhopal (psychiatry and sleep medicine) 17 Ms. Lester’s identifies Dr. Nishi Bhopal as one of her treating physicians. Mot. at 7 (“The 18 key treaters for this case are Dr. Nishi Bhopal, who is board certified in psychiatry and sleep 19 medicine . . . .”) (emphasis added). However, in her reply brief, Ms. Lester argues that Liberty’s 20 decision to only contact Dr. Bhopal telephonically was erroneous, because “Dr. Bhopal, a 21 psychiatrist and sleep medicine specialist, was not Ms. Lester’s primary treater for cognitive 22 impairment.” Docket No. 42 (“Lester Reply”) at 6 (emphasis added). She does not explain this 23 inconsistency. In support of her appeal, Ms. Lester only attaches one medical opinion from Dr. 24 Bhopal: on December 10, 2018 (i.e., after Liberty found Ms. Lester was no longer disabled, but 25 before the appeal process), Dr. Bhopal penned a letter stating that she was “aware that Ms. Lester 26 has been diagnosed with a Mild Cognitive Impairment, iron deficiency/anemia, and uterine 27 fibroids. She is being treated for these conditions primarily by other physicians.” Id. (emphasis 1 impairment, her letter continues to opine on such condition. She states that “[h]er cognitive issues 2 . . . continue.” Id. Dr. Bhopal also acknowledged that Ms. Lester “had neuropsychological testing 3 in February 2018. When we saw such improvement with Ms. Lester’s depression and anxiety but 4 stagnant cognitive problems we thought something else must be going on . . . . [¶] Because the 5 cognitive impairment appears to be separate and unrelated to the mood disorders, any 6 improvement in the mood disorders would not necessarily lead to a corresponding improvement in 7 cognitive function.” Id. Notably, Dr. Bhopal did not diagnose Ms. Lester with cognitive 8 impairment. Instead, Dr. Bhopal’s letter states, “I have diagnosed her with Major Depressive 9 Disorder (MDD), single episode, with a rule-out of recurrent depression. Ms. Lester’s MDD is 10 currently in partial remission. I have also diagnosed her with Generalized Anxiety Disorder 11 (GAD). Additionally, I have diagnosed her with Delayed Sleep Phase Syndrome, a circadian 12 rhythm disorder.” Id. It does not describe cognitive impairments, nor does she clearly opine she 13 is disabled from working in her occupation. 14 Indeed, Roche’s motion, however, provides the Court with additional medical 15 documentation from Dr. Bhopal that suggests Ms. Lester could return to work under certain 16 conditions. On December 17, 2017, Dr. Bhopal signed a “Return to Work Release Form” with a 17 February 5, 2018 as the indicated date on which Ms. Lester was able to return to work. Odgaard 18 Decl., Ex. T. This form recommends that Ms. Lester “[r]eturn on reduced schedule of 3 19 days/week for weeks 1 & 2, then 4 days/week for weeks 3 & 4, then full time by week 5. Id. 20 Then, on February 6, 2018, Dr. Bhopal provides further recommendations: “[r]ecommended 21 return to work date of March 5, 2018” and “[i]t is recommended that she be assigned to a different 22 role (business-oriented) either within or outside of her current department.” Id. Lastly, on August 23 2, 2018, Dr. Bhopal provides an update on Ms. Lester’s ability to return to work:
24 We have been working on implementing a comprehensive treatment plan to optimize her health and wellness and to facilitate her return 25 to work. As part of her treatment plan, it is recommended that she engage in career coaching with an executive coach. The desired 26 outcomes of career coaching are to learn how to accurately assess her strengths and weaknesses, learn how to use her skills and talents 27 effectively at work, learn stress management techniques that are 1 Id., Ex. G. 2 The parties dispute whether Dr. Bhopal’s opinions regarding Ms. Lester’s readiness to 3 return to work demonstrate that she is able to perform her own occupation in accordance with the 4 Plan. On the one hand, Ms. Lester argues that the definition of “Own Occupation” in the Plan 5 does not speak to with or without accommodations, and neither of Ms. Lester’s treating physicians 6 indicated that she could return to work without restrictions. On the other hand, Roche argues that 7 the recommendations that Ms. Lester return to work on a reduced schedule suggests that she could 8 perform her job functions. Moreover, Roche contends that Dr. Bhopal’s recommendation that 9 Genentech place Ms. Lester in a “business-oriented” role supports its argument that she was able 10 to do her job; this is so because a Genentech accommodation specialist stated that Ms. Lester was 11 “already in an extremely business oriented role.” Id., Ex. W. 12 c. Dr. Matthew Arnold, MD 13 On March 13, 2018, Ms. Lester saw Dr. Matthew Arnold for an MRI. Id., Ex. K. Dr. 14 Arnold noted that “[a]nxiety and depression . . . may contribute to some of her cognitive problems 15 . . . .” Id. He also concluded that there was “[n]o acute intracranial abnormality or acute infarct. 16 No abnormal enhancement of the brain leptomeninges.” Id. Indeed, Ms. Lester characterizes Dr. 17 Arnold’s findings on white matter abnormalities as “inconclusive.” Lester Reply at 5. 18 3. Liberty’s Medical Reviewers 19 a. Dr. Pei Nie, M.D. 20 Liberty hired medical file reviewers to access Ms. Lester’s disability status. Specifically, 21 Dr. Pei Nie reviewed Ms. Lester’s medical records on October 9, 2018. Benham-Baker Decl., Ex. 22 7. Dr. Nie began by reviewing Ms. Lester’s medical documentation beginning from November 23 15, 2017 through August 3, 2018. Id. Dr. Nie also spoke with Ms. Lester’s treating physician, Dr. 24 Bhopal, on a peer-to-peer call and reviewed a note dated April 13, 2018, wherein Dr. Bhopal 25 opined that Ms. Lester “has been starting to feel better, trying to keep her apartment clean, 26 spending more time with friends, and feeling optimistic.” Id. 27 Dr. Nie was posed with the following question: “Do the medical records reasonably 1 preclude her from carrying out [her] usual life activities, including work related activities?” Id. In 2 response, Ms. Nie opined that,
3 Although [Ms. Lester] reports being impaired by mental illness, with complaints of fatigue, insomnia, and difficulty with concentration, 4 the treating psychiatrist does not provide any current specific behavioral observation that speak to the presence, nature, or severity 5 of a psychiatric impairment. The documentation reports impressions of a dysthymic mood and that [Ms. Lester] appears tired, but there 6 were no elaborations on these impressions to support that [Ms. Lester] was impaired as a result. Notes from July–August 2018, the 7 most recent psychiatric notes, report that [Ms. Lester] had been starting to feel better, trying to keep her apartment clean, spending 8 more time with friends, and feeling optimistic. Her mood was reported to be stable. Due to the changeable nature of psychiatric 9 disorders, and as [Ms. Lester] was in care, those notes do not likely represent her current functioning. Dr. Bhopal did not report any 10 current mental status findings to document impairment in [Ms. Lester’s psychiatric functioning. 11 As a result, there are no current findings to support that [Ms. Lester] 12 is impaired from a psychiatric perspective. 13 Id. Moreover, in response to “[d]o the medical records support that [Ms. Lester] be restricted or 14 limited from performing activities such as their job duties in a different environment,” Dr. Nie 15 wrote “[a]s no current psychiatric impairment is supported, no restrictions or limitations are 16 supported from a psychiatric perspective.” Id. 17 As to Ms. Lester’s cognitive impairment, Dr. Nie opined that “[i]ndividuals suffering from 18 depression often report the perception that their cognitive functioning is impaired, although they 19 are typically found to be unimpaired upon formal testing. In this case, there are no current formal 20 mental examination findings to document the presence and severity of impairment in the [Ms. 21 Lester’s] memory specifically, or in her cognitive function generally.” Id. 22 b. Dr. Vikram Garg 23 On October 9, 2018, Dr. Vikram Garg also submitted a review on Ms. Lester’s medical 24 records at the request of Liberty. Dr. Garg concluded that with regard to full-time sustained 25 working capacity, there were “[n]o restrictions supported from an internal medicine perspective. 26 Odgaard Decl., Ex. L. As to Ms. Lester’s impairments, Dr. Garg noted that “[f]rom an internalist 27 standpoint I do not find evidence that her diagnosis of hypovitaminosis D and asthma and anemia 1 controlled. Her anemia is not severe enough to cause any restriction in cardiac or pulmonary 2 function. [¶] As for her cognitive and mental health issues I would defer review of that to the 3 appropriate specialist.” Id. Additionally, “[t]he psychiatric and cognitive issues seem to be the 4 primarily limiting conditions so assessment of that should be deferred to the appropriate 5 specialist.” Id. 6 Based on Dr. Nie and Mr. Garg’s report, Liberty determined Ms. Lester was not disabled, 7 and Roche terminated her LTD benefits. 8 c. Dr. H. Daniel Blackwood, Ph.D 9 On appeal, Liberty retained Dr. H. Daniel Blackwood, Ph.D for review of Ms. Lester’s 10 medical records on February 6, 2019. Odgaard Decl., Ex. Q. Dr. Blackwood found the following:
11 As of the date of this report, there is no support for impairment attributable to the presence of mental illness that would preclude 12 [Ms. Lester] from carrying out her usual life activities, including work related activities, from October 1, 2018, forward. [Ms. Lester] 13 is scheduled to undergo repeat neuropsychological examination in March 2019. The last neuropsychological examination was weak in 14 terms of assessment of validity of performance, particularly since it was obviously not conducted in a disability context. Any 15 neuropsychological examination conducted upon [Ms. Lester] will have to contain adequate measures of performance-validity and 16 validity of symptoms-reporting in order to be useful in this context.
17 . . . .
18 The results of the neuropsychological examination reviewed below reflect significant variability in [Ms. Lester’s] performance in 19 various neurocognitive domains. She has exhibited specific difficulty in visual-spatial processing. I am not sure how this would 20 translate into any specific functional impairment related to her job duties. Her general intelligence, memory, performances, and 21 problem solving abilities are well within normal limits, although I cannot address the extent to which her performances represent any 22 possible declines from historical levels of function. Dr. Canning renders no specific neurocognitive diagnosis, and I derive no 23 specific diagnosis based upon the reviewed results. The performance-validity-assessment of the examination was weak, but I 24 see no particular indications of lack of effort on the part of Ms. Lester. The results documented significant improvement with 25 respect to depression/anxiety. These problems are apparently resolved. 26 . . . . 27 of depression and generalized anxiety are being managed 1 adequately, and the clinician specifically addressing neurological factors, Susan Sullivan, NP, has given no specific neurological 2 diagnosis, so there is no basis for discussion with treating providers at this point. Contact following updated neuropsychological 3 examination might be helpful, along with review of records documenting the cognitive rehabilitation to which [Ms. Lester] 4 refers in her declaration. 5 Id. Dr. Blackwood also noted that, on November 6, 2018, Ms. Lester was administered the 6 Montreal Cognitive Assessment, in which she scored 27 out of 30, which, according to Dr. 7 Blackwood, is within normal limits. Id. 8 d. Dr. Yong-Sung Chyun 9 Liberty also hired Dr. Yong-Sung Chyun to review Ms. Lester’s medical records for the 10 appeal. On February 15, 2019, Dr. Chyun reported that “from an internal medicine perspective, 11 [there was] no impediment to full time work capacity . . . .” Odgaard Decl., Ex. R. 12 4. Whether The Findings Were Arbitrary And Capricious 13 Ms. Lester maintains that Liberty’s reviewing doctors failed to credit her treating 14 physicians’ opinions as to her cognitive impairment. Moreover, she also takes issue with 15 Liberty’s failure to conduct an in-person medical exam and failure to speak with all of her treating 16 physicians. Roche responds that: (1) neither of Ms. Lester’s treating physicians concluded that 17 she was disabled under the terms of the Plan; (2) Ms. Lester’s treating physicians opined that she 18 could return to work with accommodations; and (3) the reviewing physicians’ opinions were 19 unbiased and based on a thorough review of Ms. Lester’s medical records. 20 As explained by the Supreme Court, “[p]lan administrators . . . may not arbitrarily refuse to 21 credit a claimant's reliable evidence, including the opinions of a treating physician.” Black & 22 Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). However, “courts have no warrant to 23 require administrators automatically to accord special weight to the opinions of a claimant's 24 physician; nor may courts impose on plan administrators a discrete burden of explanation when 25 they credit reliable evidence that conflicts with a treating physician's evaluation.” Id.; Gorbacheva 26 v. Abbott Labs. Extended Disability Plan, 794 F. App’x. 590, 593 (9th Cir. 2019) (no special 27 weight to treating physicians). In Nord, the Supreme Court distinguished ERISA benefit 1 weight [] accorded [to] opinions of the claimant's treating physician.” Nord, 538 U.S. at 825. The 2 Court made this distinction because “[t]he treating physician rule . . . was originally developed by 3 Courts of Appeals as a means to control disability determinations by administrative law judges 4 under the Social Security Act.” Id. at 829. But “ERISA was enacted to promote the interests of 5 employees and their beneficiaries in employee benefit plans, and to protect contractually defined 6 benefits,” and “[n]othing in the Act itself . . . suggests that plan administrators must accord special 7 deference to the opinions of treating physicians. Nor does the Act impose a heightened burden of 8 explanation on administrators when they reject a treating physician's opinion.” Id. at 830–31. 9 Most importantly, according to the Supreme Court, the two Acts play different roles:
10 The Social Security Act creates a nationwide benefits program funded by Federal Insurance Contributions Act payments and 11 superintended by the Commissioner of Social Security. To cope with the more than 2.5 million claims for disability benefits [filed] 12 each year, the Commissioner has published detailed regulations governing benefits adjudications. Presumptions employed in the 13 Commissioner's regulations grow out of the need to administer a large benefits system efficiently. By accepting and codifying a 14 treating physician rule, the Commissioner sought to serve that need. Along with other regulations, the treating physician rule works to 15 foster uniformity and regularity in Social Security benefits determinations made in the first instance by a corps of 16 administrative law judges.
17 In contrast to the obligatory, nationwide Social Security program, [n]othing in ERISA requires employers to establish employee 18 benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. Rather, 19 employers have large leeway to design disability and other welfare plans as they see fit. In determining entitlement to Social Security 20 benefits, the adjudicator measures the claimant's condition against a uniform set of federal criteria. [T]he validity of a claim to benefits 21 under an ERISA plan, on the other hand, is likely to turn, in large part, on the interpretation of terms in the plan at issue. It is the 22 Secretary of Labor's view that ERISA is best served by preserv[ing] the greatest flexibility possible for . . . operating claims processing 23 systems consistent with the prudent administration of a plan. 24 Id. at 833 (internal quotations and citations omitted) (alterations in original). 25 Thus, Dr. Canning and Dr. Bhopal’s reports are not accorded any special deference, and 26 the Court may ignore them in favor of the reviewing physicians’ opinions if they are more 27 persuasive. Id. at 834. In any event her doctors’ reports are not clearly supportive of her claim of 1 inconsistent with a finding of disability. It recommended that if Ms. Lester returns to her previous 2 position, “it should be on a paced schedule to gradually work back up to the demands of full time 3 employment after a 6-month leave.” Benham-Baker Decl., Ex. 4. at 7. As to Dr. Bhopal, Roche 4 cites to a return-to-work release form signed by Dr. Bhopal dated December 19, 2017, in which 5 she stated that Ms. Lester could “[r]eturn on reduced schedule of 3 days/week for weeks 1 & 2, 6 then 4 days/week for weeks 3 & 4 then full time by week 5.” Odgaard Decl., Ex. T. Roche also 7 provides the Court with a recommendation from Dr. Bhopal dated February 6, 2018, that 8 recommends a “return to work date of March 5, 2018” for Ms. Lester, and that “[i]t is 9 recommended that she be assigned a different role (business-oriented) either within or outside of 10 her current department.” These recommendations indicate that Ms. Lester was able to return to 11 work in some capacity. Although Ms. Lester contends Roche refused to provide the suggested 12 accommodation, at best these doctors’ reports are ambiguous as to whether Ms. Lester was so 13 severely impaired that she could not work without accommodations. Neither Dr. Canning nor Dr. 14 Bhopal conclusively opines that Ms. Lester’s cognitive impairment was so disabling that she could 15 not return to work in her previous role at Genentech. Liberty’s reviewers noted the absence of 16 such a finding. 17 The medical reviewers retained by Roche found the record supports a finding Ms. Lester 18 was not disabled from working her own occupation. It is undisputed that Liberty hired—and, thus 19 paid—its medical reviewers. Ms. Lester argues that the reports from these medical reviewers are 20 biased for this reason alone. Ms. Lester has the burden of demonstrating that the medical 21 reviewers hired by Liberty are not independent. Demer, 835 F.3d at 902 (“the party claiming a 22 conflict . . . [must] produce evidence of a financial conflict sufficient to warrant a degree of 23 skepticism.”). 24 In support of her argument that Dr. Blackwood is biased, she cites to evidence that Dr. 25 Blackwood has reviewed approximately 1,000 claims for Liberty from September 1, 2017 to 26 February 13, 2020. In Demer, the Ninth Circuit concluded that the claimant satisfied his burden in 27 showing bias based on evidence that the reviewing doctor “earned a substantial amount of money 1 reviews for the company as well (200–300 reviews/addendums each year).” Id. Here, assuming 2 Dr. Blackwood reviewed the same number of claims for Liberty each year from late 2017 through 3 early 2020, that would equate to well over 300 reviews per year. This is more than the reviews 4 found by the Demer court that warranted skepticism. Thus, this Court finds that Ms. Lester, like 5 the claimant in Demer, has met her burden of production in showing that Dr. Blackwood has at 6 least some degree of financial conflict. This Court will therefore weigh Dr. Blackwood’s report 7 with skepticism. 8 However, Ms. Lester has not provided the same type of evidence for the remaining file 9 reviewers (e.g., Drs. Nie, Garg, or Chyun). Indeed, Ms. Lester simply states that “Dr. Nie 10 demonstrated her bias by utilizing the typical methodology of hired reviewers and seeing a 11 vacation, yoga, and mediation as indications of ability to work.” This is too conclusory of an 12 assertion to demonstrate that Dr. Nie (or any other reviewer) was so biased against Ms. Lester 13 such that her opinions deserve no credence. Moreover, at the hearing, counsel for Ms. Lester 14 indicated that there was nothing in the record to support a finding of bias against any reviewer 15 other than Dr. Blackwood. 16 Ms. Lester also argues that Liberty’s reviewing physicians should be discredited because 17 they did not meet with her for an in-person examination, and because they did not call each of Ms. 18 Lester’s treating physicians. Liberty does not dispute that its doctors only examined the medical 19 records rather than meeting with Ms. Lester in person. While it is true that an in-person 20 examination may be more reliable than a paper review—especially for a disability such as 21 cognitive impairment—a lack of an independent, in-person examination does not render that 22 reviewer’s report unreasonable per se. See Broyles v. A.U.L. Corp. Long-Term Disability Ins. 23 Plan, 2009 WL 3817935, at *6 (N.D. Cal. Nov. 12, 2009), aff'd, 408 F. App'x 67 (9th Cir. 2011) 24 (“ERISA does not require a plan administrator to obtain an independent medical examination, and 25 consulting physicians' opinions based on reviews of medical records are an acceptable basis of an 26 administrator's determination.”); Montour, 588 F.3d at, 630 (“whether the plan administrator 27 subjected the claimant to an in-person medical evaluation or relied instead on a paper review of 1 906 (scrutinizing, under a totality of circumstances test, a doctor’s paper-only review of the 2 claimant’s credibility). 3 In toto, the Court finds that Roche did not abuse its discretion. Liberty’s finding that Ms. 4 Lester’s cognitive impairment was not a disability under the Plan was not “(1) illogical, (2) 5 implausible, or (3) without support in inferences that may be drawn from the facts of the record.” 6 Salomaa, 642 F.3d at 676 (quoting Hinkson, 585 F.3d at 1262). Specifically, the Court finds Dr. 7 Nie’s review of Ms. Lester’s medical records was reasonable and thorough. See Odgaard Decl., 8 Ex. M. Unlike Dr. Canning, Dr. Nie’s evaluation did a comparison of Ms. Lester’s cognitive 9 ability with her job duties. Id. at ROCHE000297. Dr. Nie also considered Ms. Lester’s medical 10 records beginning from the onset of her disability in September 7, 2017, and these records came in 11 the form of progress reports/notes, work status reports, provider statements, functional capacity 12 evaluations, etc.—all of which were from Ms. Lester’s treating physicians.4 Moreover, Dr. Nie 13 had a peer-to-peer call with Dr. Bhopal. Id. at ROCHE000300. While Dr. Nie did not call Dr. 14 Canning, the Court finds this to be a de minimus omission because Dr. Canning did not have a 15 history of treating Ms. Lester—Dr. Canning only evaluated her once in February 2018. 16 While this Court need only find one medical opinion supports Roche’s decision to 17 terminate benefits in order to conclude that its decision was not an abuse of discretion (see 18 Montour, 588 F.3d at 629), the record contains other evidence concluding that Ms. Lester was able 19 to return to work. Dr. Chyun and Vikram Garg opined in their respective fields of expertise in 20 internal medicine that Ms. Lester’s diagnosis did not support an impediment or restriction to work 21 full time. See Odgaard Decl., Exs. L & R. Most notably, Liberty’s determination is supported by 22 Dr. Blackwood’s report of Ms. Lester’s strong score (i.e., 27/30) on the Montreal Cognitive 23 Assessment; that score would appear to be to be more probative of her cognitive ability at the time 24 of the termination of her benefits, because it was the closer-in-time assessment than Dr. Canning’s 25 February 2018 evaluation. While counsel for Ms. Lester argued at the hearing that this assessment 26 did not supersede Dr. Canning’s February 2018 report, counsel did not otherwise offer any 27 1 argument as to why this November 2018 assessment should be less probative of Ms. Lester’s 2 cognitive status at the time of the cessation of her LTD benefits (i.e., October 2018). Indeed, both 3 parties conceded at the hearing that this Montreal Cognitive Assessment is used to do just that— 4 measure cognitive ability. 5 A further consideration providing support for Liberty’s determination is Ms. Lester’s job 6 applications to a chief-of-staff position at Genentech and a role in Genentech’s parent company’s 7 (i.e., Roche) Switzerland office to be probative of her ability to return to work. While the record 8 does not contain the job description for these roles, the chief-of-staff position’s title, alone, 9 suggests that it requires a high level of basic cognitive functions not consistent with Ms. Lester’s 10 claims of disability. To be sure, this fact alone provides weak probative value given there is 11 nothing in the record specific about the nature of the position sought, and those on disability leave 12 should not be discouraged or penalized for trying to find employment. But this evidence is not 13 entirely irrelevant and tends to corroborate (though only slightly so) the medical evidence in the 14 record supporting Liberty’s finding. 15 Finally, as noted above, the reviewer’s findings are not squarely contradicted by Ms. 16 Lester’s doctors’ reports: two of Ms. Lester’s physicians opined that she could return to her 17 regular, pre-disability job with accommodation (i.e., a shorter workweek that gradually progressed 18 into full-time employment). Although Ms. Lester points out that Roche did not accommodate her, 19 the accommodations were temporal in nature and did not suggest a long-term inability to work 20 without accommodations. 21 In support of her claim of disability, Ms. Lester cites to Spears v. Liberty Life Assurance 22 Company of Boston, 2019 WL 4766253 (D. Conn, Sept. 30, 2019) as an instructive case because it 23 involved the same plan administrator here, i.e., Liberty, and the disability at issue was also 24 cognitive impairment. But as Roche correctly point out, the similarities end there. While Ms. 25 Lester cites Spears for the proposition that Liberty’s lack of a global assessment was “disturbing,” 26 the district court made this finding (1) on a de novo standard; (2) after concluding there was a 27 structural conflict because Liberty paid the LTD benefits claims and was the plan administrator; 1 in a conference call to discuss the claimant’s disability. Id. at 38-40. These facts are not present 2 || on this record. 3 V. CONCLUSION 4 Ms. Lester has failed to demonstrate by a preponderance of the evidence that Roche’s 5 || decision to terminate her benefits in October 2018 was an abuse of discretion or that was it “(1) 6 || illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts of 7 the record.” Salomaa, 642 F.3d at 676. Instead, the decision was grounded on a reasonable basis. 8 || See Montour, 588 F.3d at 629. Accordingly, Ms. Lester’s motion for judgment is DENIED, and 9 || Roche’s motion for judgment is GRANTED. 10 This order disposes of Docket Nos. 38 and 39. 11 12 IT IS SO ORDERED.
14 Dated: June 23, 2020 15 16 5 ED M. CHEN nited States District Judge 18 19 20 21 22 23 24 25 26 27 28