1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Tammy Logan, No. 2:20-cv-01742-KJM-JDP 12 Plaintiff, ORDER 13 Vv. The Prudential Insurance Company of 15 America, et al., 16 Defendants. 17 18 Plaintiff Tammy Logan challenges defendant Prudential Insurance Company of America’s 19 | denial of her claim for long-term disability benefits under the Employee Retirement Income 20 | Security Act (ERISA). As explained in this order, Prudential incorrectly denied her claim for 21 | benefits for the period between June 19, 2019 and July 2, 2021. 22 | I. BACKGROUND 23 Logan began working for Sentry Insurance in 2016. AR 7. In 2018, she was a senior 24 | claims representative. /d. According to the job description, senior claims representatives 25 | investigate, evaluate, and make decisions about claims for insurance. See AR 129-30, 1588. 26 | They consult with customers, create claims files, and attend mediations, settlement conferences, 27 | and trials. /d. They might also collect evidence, such as by taking recorded statements and 28 | obtaining police and medical reports or appraisals. AR 129-30. Most of Logan’s days were
1 spent sitting, working at a computer, and in meetings or calls. AR 1588. She worked eight to ten 2 hours a day, sometimes more, and sometimes also on the weekend. See AR 1588–89. 3 In late December 2018, Logan fell from a ladder and fractured her ankle. AR 7, 254. She 4 went to the hospital. AR 742. The next day, she saw Dr. Stephen Barad, an orthopedic surgeon, 5 who performed an operation to stabilize and heal her ankle through a procedure known as an open 6 reduction and internal fixation. AR 742, 762. She was discharged two days later, and her doctors 7 advised her not to work while she was recovering. AR 18, 29, 742. Dr. Barad instructed her 8 specifically not to spend time sitting, standing, using a keyboard, or rotating and flexing her 9 wrists. AR 29–30. 10 A few weeks later, an x-ray of her ankle showed a “stable alignment” and no “definite 11 hardware loosening or fracture,” but there was a “faintly seen” fracture line, “suggesting 12 incomplete healing.” AR 1459. Logan saw Dr. Barad for a follow-up visit. AR 254. He wrote 13 that she was “doing well.” Id. He described the alignment of her ankle as “perfect” and the 14 mortise “well maintained.” Id. His plan was for Logan to gradually increase the amount of 15 weight her ankle could bear using a boot. Id. He scheduled a follow-up visit in four to six weeks 16 and created a therapy program. Id. 17 Despite these initially positive signs, Logan’s recovery stalled. In March, she still had 18 swelling and discomfort in her ankle. AR 1459. She could not sit for long periods of time. Id. 19 An MRI showed tears in the soft tissues in her knee. AR 1459, 253. Dr. Barad thought her ankle 20 was recovering well, and he thought she was “just about ready” to begin physical therapy, but he 21 had concerns about a possible injury in her knee. AR 253. He decided to wait and watch her 22 progress and see her again in six weeks. Id. He thought surgery might eventually be necessary. 23 Id. 24 Before six weeks had passed, however, Logan was back in Dr. Barad’s office. AR 252. 25 As before, her ankle was getting stronger, but her knee was in pain. Id. X-rays and an MRI 26 suggested the anterior cruciate ligament (ACL) in her left knee was stretched or torn. Id. Dr. 27 Barad prescribed physical therapy, anti-inflammatory medication, and exercise. Id. He did not 28 think surgery was necessary yet. Id. But by the next month, in April, the swelling and pain in 1 Logan’s ankle was subsiding, but her knee was still in pain. AR 253. Dr. Barad reviewed the 2 benefits and risks of a diagnostic surgery with Logan, and she told him she wanted to move 3 forward with that plan before she went back to work. Id. Dr. Barad instructed her not to spend 4 time sitting, standing, walking, driving, climbing, or working, but he did not impose restrictions 5 against using a keyboard or rotating her wrists. AR 32. In May, a surgery was scheduled. AR 9. 6 Logan told Sentry, and it submitted a claim for long-term disability insurance coverage to 7 Prudential on her behalf. AR 7–8. 8 Dr. Barad performed the surgery later the same month. AR 437–38. Afterward, he told 9 Sentry that Logan would not be able to work again until June, if not later. AR 233–34. He 10 instructed her again not to spend time sitting, standing, walking, and driving, among other things, 11 but he did not impose limits on her use of a keyboard. AR 233. 12 Unfortunately, Logan’s condition did not significantly change for the better. She 13 described her symptoms in detail in a statement she later submitted with a claim for long-term 14 disability insurance. She could not “sit or stand for long periods of time.” AR 323. She had 15 “chronic pain in her left ankle with stiffness, swelling & popping,” “stabbing pain” in her left heel 16 and foot, “chronic” pain and “tightness” in her knee, headaches, and pain in her left leg, hip, arm, 17 shoulder and neck.” Id. She could not walk without assistance. Id. She could not focus or 18 concentrate. Id. 19 Prudential requested medical records from Dr. Barad and asked him to fill out a 20 questionnaire. AR 243–50. He gave her diagnoses using ICD10 codes: “M23.009,” which 21 indicates “cystic meniscus, unspecified meniscus, unspecified knee,” and “S82.91xA,” for 22 “unspecified fracture of right lower leg, initial encounter for closed fracture.”1 AR 248. He 23 estimated Logan would be able to return to work full time by the end of August. AR 249–50. 1 ICD-10 refers to the tenth edition of an international medical classification list, the “International Statistical Classification of Diseases and Related Health Problems.” See World Health Organization, “International Statistical Classification of Diseases and Related Health Problems (ICD),” https://www.who.int/standards/classifications/classification-of-diseases (last visited Nov. 7, 2022). The court takes judicial notice of this information. See Druhot v. Reliance Standard Life Ins. Co., No. 16-CV-2053, 2017 WL 4310653, at *2 n.3 (N.D. Ill. Sept. 28, 2017) (taking judicial notice of ICD codes and definitions as undisputed matters of public record). 1 Although he checked “no” in response to the question, “Are you opining any restrictions and 2 limitations for this patient?” he responded later on that Logan could not spend any time standing, 3 walking, sitting, climbing stairs, climbing ladders, stooping, kneeling, reaching overhead, or 4 lifting and carrying more than 10 pounds. AR 247, 249. He did not impose limits on her use of a 5 computer mouse or keyboard. AR 249. Logan also spoke to a Prudential employee on the phone 6 during this time. She described similar problems. See AR 282–83. 7 In another follow-up visit in July 2019, Dr. Barad saw some swelling in Logan’s knee, but 8 only a “little bit.” AR 1673. Her ankle had also swelled, but she had a good range of motion. Id. 9 He recommended “bracing and activity as tolerated.” Id. In a report to Prudential, he noted 10 restrictions against prolonged standing, walking, sitting, climbing, and heavy lifting, among other 11 things, but not keyboarding. AR 1417. He gave her a three-month prognosis to return to work. 12 AR 1416, 1418. At about the same time, a different doctor, Paramjit Takhar, diagnosed Logan 13 with a pinched nerve in her neck, namely radiculopathy in the cervical region. AR 1661. 14 Prudential was reviewing Logan’s long-term disability insurance claim at about this same 15 time. Logan would be entitled to long-term disability benefits if she had a “disability.” AR 69. 16 For Logan’s claim, the policy defines “disability” using three criteria. First, employees must be 17 “unable to perform the material and substantial duties” of their “regular occupation” due to 18 “sickness or injury.” AR 81 (emphasis omitted). “Material and substantial duties means duties 19 that: are normally required for the performance of your regular occupation; and cannot be 20 reasonably omitted or modified.” Id. (emphasis omitted). Second, employees must be under 21 “regular care of a doctor.” Id. (emphasis omitted). Third, employees must have sustained a loss 22 in monthly earnings of 20 percent or more due to that sickness or injury. Id. (emphasis omitted). 23 Heidi Garcia, a nurse employed by Prudential, reviewed Logan’s claim and medical 24 records. In Garcia’s opinion, it would be reasonable to expect someone in Logan’s situation to 25 have no capacity for about three months after her first surgery, then limited capacity for the next 26 two months. See AR 1457–61. Garcia also believed it would be reasonable to expect Logan to 27 have no capacity to work for two to four weeks after her second surgery in late May. AR 1461. 28 Beyond that, however, Garcia thought it would be reasonable to expect Logan to return to work. 1 Id. A vocational expert also decided Logan’s position, her “regular occupation,” was 2 “sedentary.” AR 1484–86. 3 Prudential determined Logan did not meet the policy’s definition of “disability,” so it 4 denied her claim. AR 1486. Based on its review of her medical records, it was “unclear” to 5 Prudential why Logan was “not released to full time return to work 2–4 weeks” after her second 6 surgery. AR 1485. According to a call log, Prudential informed Logan “[i]t doesn’t appear your 7 condition would prevent you from performing the material and substantial duties of your regular 8 occupation beyond that.” AR 1504. 9 In its letter, Prudential recognized that the Social Security Administration had approved 10 Logan’s claim for Social Security Disability benefits. AR 1486. That approval did not change 11 Prudential’s decision to deny benefits. Id. Its explanation was unenlightening. Id. “[T]he Social 12 Security Administration (SSA) must make their determinations based on the information 13 available to them and their rules and guidelines,” Prudential wrote, “and we must render our 14 decisions based on the information available in your . . . file and the provisions of the . . . Plan.” 15 Id. 16 After Prudential denied Logan’s claim, she saw another doctor, Phong Le, a physical 17 therapist. AR 1676. He diagnosed her with “painful hardware in the left ankle and mild ankle 18 OA,” i.e., osteoarthritis. AR 1678. He spent more than 45 minutes speaking with her about her 19 file and treatment options. See id. She decided to “undergo elective surgery for hardware 20 removal.” Id. In a later visit, she had not yet undergone this surgery, and Dr. Le described her 21 condition as “temporarily disabled.” AR 1681. In his words, she had an “orthopedic device 22 screw that is too long and interfering with her joint (ankle) and bone which is causing pain when 23 she moves or walk[s].” Id. His advice was to “preserve her joint and bone” by “not walking, or 24 using [the] joint specifically, and to not sit for long periods of time.” Id. 25 During this time, Logan still claimed to be in daily pain. AR 1588. She could not sit or 26 stand for more than 10 minutes without pain. Id. She was “always on pain medication,” which 27 made her “sleepy, dizzy and nervous,” slowed her thinking, and dulled her focus. Id. She 28 depended on her family for help and used a crutch to walk. Id. 1 Logan later appealed Prudential’s decision to deny her claim. AR 1572–87. Prudential 2 referred her case to a consultant, Ephraim K. Brenman, D.O. AR 1709–15. After reviewing the 3 file, he gave an opinion in Prudential’s favor. AR 1713–15. In his opinion, although Logan’s 4 conditions prevented her from squatting, walking, and standing for long periods without breaks, 5 among other activities, she should have been able to sit and work at a desk and use a keyboard, 6 mouse, and phone. AR 1713. Brenman sent a questionnaire to Dr. Barad, who responded that he 7 had not seen Logan for several months and could not answer specific questions. AR 1913. 8 Prudential sent Brenman’s report to Logan and her counsel for comment. AR 1763–64. 9 Logan’s counsel responded on her behalf, enclosing a letter from Dr. Le. AR 1779–86. He 10 reaffirmed his diagnosis of osteoarthritis, explained the complications caused by orthopedic 11 hardware in her ankle, and expressed his opinion that Logan had been disabled since December 12 2018, when she fell from the ladder. AR 1784. In his opinion, “prolonged walking, sitting, or 13 using the joint specifically cause Ms. Logan pain and would further damage Ms. Logan’s left 14 ankle joint and bone.” AR 1785. Dr. Brenman reviewed Dr. Le’s letter but did not change his 15 opinion. AR 1803–06. He found “a lack of consistent documentation and records” showing 16 Logan had “significant limitations and restrictions from medication side effects.” AR 1804. He 17 dismissed Dr. Le’s opinions as founded on her own reports of “subjective pain.” Id. Prudential 18 upheld its decision to deny long-term disability benefits based on Dr. Brenman’s opinion. 19 AR 1853–56. It concluded again that Logan could have begun working again within two to four 20 weeks after her second surgery. See id. 21 Logan then filed her complaint in this case under 29 U.S.C. § 1132. See generally 22 Compl., ECF No. 1; 29 U.S.C. § 1132(a)(1)(B) & (g)(1). The parties have fully briefed her 23 challenge to Prudential’s decision. See generally Pl.’s Br., ECF No. 23; Def.’s Br., ECF No. 21; 24 Pl.’s Resp., ECF No. 25; Def.’s Resp., ECF No. 26. The court submitted the matter without 25 hearing oral argument. 26 II. LEGAL STANDARDS 27 “ERISA was enacted to promote the interests of employees and their beneficiaries in 28 employee benefit plans, and to protect contractually defined benefits.” Black & Decker Disability 1 Plan v. Nord, 538 U.S. 822, 830 (2003) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 2 101, 113 (1989)). Under ERISA’s civil enforcement provisions, a plan participant may bring a 3 civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under 4 the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 5 29 U.S.C. § 1132(a)(1)(B). “[A] denial of benefits challenged under § 1132(a)(1)(B) is to be 6 reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary 7 discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” 8 Firestone, 489 U.S. at 115. Prudential does not argue the plan gives it discretionary authority, see 9 Def.’s Br. at 12, so this court reviews de novo. 10 District courts reviewing de novo “undertake an independent and thorough inspection of 11 an administrator’s decision.” Silver v. Exec. Car Leasing Long-Term Disability Plan, 466 F.3d 12 727, 728 (9th Cir. 2006). When, as in this case, the dispute will be resolved by a motion for 13 judgment under Federal Rule of Civil Procedure 52, the court makes findings of fact, evaluates 14 conflicting testimony, and decides what is most likely true. See Kearney v. Standard Ins. Co., 15 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc). “[T]he court does not give deference to the claim 16 administrator’s decision, but rather determines in the first instance if the claimant has adequately 17 established that he or she is disabled under the terms of the plan.” Muniz v. Amec Const. Mgmt., 18 Inc., 623 F.3d 1290, 1295–96 (9th Cir. 2010). “[W]hen the court reviews a plan administrator's 19 decision under the de novo standard of review, the burden of proof is placed on the claimant.” Id. 20 at 1294. 21 III. DISCUSSION 22 A. The Administrative Record and Evidentiary Objections 23 As a threshold matter, the parties disagree what evidence the court should consider. Their 24 disagreement has two parts. First, Logan asks the court to consider the Social Security 25 Administration’s letter confirming she had been awarded Social Security disability benefits. See 26 Mot. Expand, ECF No. 17; Mem., ECF No. 17-1; see also Award Letter, Logan Decl. Ex. 7, ECF 27 No. 17-9; Reply ECF No. 19. Prudential argues the letter should not be made a part of the record. 28 See Opp’n at 2. Second, Prudential objects to a declaration and exhibits Logan submitted with 1 her responsive brief. See generally Def.’s Obj., ECF No. 27; Def.’s Resp., ECF No. 31. Logan 2 argues the court should consider this evidence because it responds to new arguments Prudential 3 raised for the first time in this court. See generally Pl.’s Resp., ECF No. 28; Pl.’s Obj., ECF 4 No. 29. 5 When a district court reviews a plan administrator’s decision de novo, it is ordinarily 6 limited to the same record as the administrator. See Mongeluzo v. Baxter Travenol Long Term 7 Disability Ben. Plan, 46 F.3d 938, 943 (9th Cir. 1995). A district court may admit additional 8 evidence “only when circumstances clearly establish that additional evidence is necessary to 9 conduct an adequate de novo review of the benefit decision.” Id. at 944 (quoting Quesinberry v. 10 Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993) (en banc)). The Ninth Circuit has 11 identified several circumstances in which it might be necessary to look beyond the administrative 12 record. See Opeta v. Nw. Airlines Pens. Plan for Contract Emps., 484 F.3d 1211, 1217 (9th Cir. 13 2007). Logan cites three. Mem. at 13–17. First, it might be necessary to look beyond the 14 administrative record if the claimant could not have presented the new evidence in the 15 administrative process. See Opeta, 484 F.3d at 1217 (quoting Quesinberry, 987 F.2d at 1027). 16 Second, new evidence can be admitted if necessary to help the court answer “complex medical 17 questions” or assess “the credibility of medical experts.” Id. (quoting Quesinberry, 987 F.2d at 18 1027). Third, new evidence might be necessary when “the payor and the administrator are the 19 same entity and the court is concerned about impartiality.” Id. (quoting Quesinberry, 987 F.2d at 20 1027). 21 Logan has not shown it is necessary to consider the Social Security award letter here, 22 given its contents or lack thereof. The letter does not include more information about Logan’s 23 condition or treatment, does not explain what evidence the Social Security Administration 24 considered, and does not explain the award decision. It states simply that Logan “is entitled to 25 monthly disability benefits.” Award Letter at 1. Because the letter states only a conclusion, it 26 does not help answer “complex medical questions,” show any expert’s opinions are not credible, 27 or resolve concerns about impartiality. In that way, this case differs from those in which courts 28 have expanded the record to include evidence about a Social Security Administration decision. 1 See, e.g., Nagy v. Grp. Long Term Disability Plan for Emps. of Oracle Am., Inc., 183 F. Supp. 3d 2 1015, 1025 (N.D. Cal. 2016) (admitting evidence of administrative law judge’s decision because 3 administrative law judge had “heard testimony from the claimant, evaluated the medical record, 4 and made a well-reasoned disability determination”), aff’d in relevant part, 739 F. App’x 366, 5 367 (9th Cir. 2018). 6 This is not to say the award letter is necessarily irrelevant. If the Social Security 7 Administration concluded Logan is “disabled” under the terms of the federal laws and regulations 8 that govern Social Security disability payments, then it could be more likely than not that Logan 9 is also “disabled” under the terms of Prudential’s plan. See, e.g., Paese v. Hartford Life & Acc. 10 Ins. Co., 449 F.3d 435, 442 (2d Cir. 2006) (affirming district court’s decision to rely on Social 11 Security Administration findings “even though they were not binding on the ERISA Plan, and 12 even though the [Administration’s] definition of disability may differ from that in the [long-term 13 disability plan]”). To that end, the record includes evidence Prudential was aware Logan had 14 been “approved for Social Security Disability Benefits,” AR 1486, as noted above. But this 15 court’s task is not to consider all relevant evidence; it is instead to evaluate Prudential’s decision. 16 See, e.g., Silver, 466 F.3d at 732 n.2 (affirming exclusion of Social Security award letter that 17 “merely repeat[ed] information that was already available”); Dorsey v. Metro. Life Ins. Co., No. 18 15-02126, 2017 WL 3720346, at *10 (E.D. Cal. Aug. 29, 2017) (denying motion to admit 19 similarly terse Social Security award letter); Carroll v. Hartford Life & Acc. Ins. Co., 20 937 F. Supp. 2d 247, 274 (D. Conn. 2013) (“[Social Security Disability Insurance] benefit 21 determinations are not binding on ERISA plans . . . .”). Logan’s motion to expand the 22 administrative record is denied. 23 The court also declines to consider the new evidence Logan submitted with her responsive 24 brief. As explained in the separate section below, Prudential cannot ask the court to affirm based 25 on a theory or arguments Prudential did not rely on during the administrative process, so the court 26 will not consider Prudential’s new arguments. See infra section III.C. It is unnecessary to add 27 evidence to the administrative record to address these new arguments. 1 B. Prudential’s Decision to Deny Benefits 2 Prudential denied Logan’s claim for long-term disability benefits because it decided she 3 was not “disabled” a few weeks after her second operation. As summarized above, the policy 4 defines “disability” using three criteria. AR 81. Prudential cited the first when it denied her 5 claim: was Logan “unable to perform the material and substantial duties” of her “regular 6 occupation” due to “sickness or injury”? Id. (emphasis omitted). 7 Logan’s position as senior claims administrator required her to focus for several hours a 8 day while sitting. AR 7, 1588–89. After she fell from a ladder in December 2018, however, she 9 could not sit for long periods without pain. As detailed in the background section above, she 10 sought and obtained treatment for many months, including two surgeries, physical therapy, and 11 narcotic pain medication. After her second surgery, she still could not sit or stand for long 12 periods without pain in her ankle, foot, knee, arm, neck, and shoulder. AR 323, 282–83, 1659– 13 61. She was diagnosed with osteoarthritis, radiculopathy, and painful orthopedic screws. AR 14 1661, 1784. Her doctors instructed her not to spend long periods of time sitting or standing. AR 15 249–50, 1417, 1681, 1785. Le, her physical therapist, reported several months after her second 16 surgery that she should not sit for long periods of time, lest she further damage her ankle. AR 17 1785. Logan’s medications also cause drowsiness and dizziness and reduce her concentration. 18 AR 1588, 1786. 19 Prudential argues the court should disregard Barad and Le’s opinions as conclusory and 20 unsupported by medical evidence. See Def.’s Br. at 16; Def.’s Resp. at 16–17. Both doctors’ 21 medical opinions and recommendations were based on their first-hand examinations of Logan and 22 the objective evidence they gathered during those examinations. See, e.g., AR 1418 (“My 23 opinion is based on . . . [o]bjective findings.”); AR 1681 (citing x-rays, medical records, and 24 examinations). The court will not disregard their opinions. Further, the Social Security 25 Administration approved Logan’s claim for disability benefits after her second surgery. See 26 AR 1486. It could not have done so without concluding her injury was “of such severity” that she 27 was “not only unable to do [her] previous work,” but also could not “engage in any other kind of 28 substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A); see 1 also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The Social Security Administration’s 2 decision to award disability benefits corroborates Logan’s own and her doctors’ accounts of her 3 disabling pain. 4 The court finds no reason to doubt Logan’s claims of pain and inability to work in her 5 position. It is not unusual for her to rely heavily on her own accounts of pain. “[I]ndividual 6 reactions to pain are subjective and not easily determined by reference to objective 7 measurements.” Hertan v. Unum Life Ins. Co. of Am., 111 F. Supp. 3d 1075, 1085 (C.D. Cal. 8 2015) (alterations in original) (quoting Saffon v. Wells Fargo & Co. Long Term Disability Plan, 9 522 F.3d 863, 872 (9th Cir. 2008)). Pharmacy and treatment records can add an objective 10 element to this necessarily subjective measurement. See Montour v. Hartford Life & Accident 11 Ins. Co., 588 F.3d 623, 635 (9th Cir. 2009). They do in this case. Logan consistently sought 12 treatment for her pain, including surgeries and physical therapy, for many months. The evidence 13 of this treatment, reviewed above, corroborates her claims of pain. It is unlikely she undertook 14 this extensive, intrusive, and lengthy effort to treat an invented ailment. See, e.g., Hertan, 15 111 F. Supp. 3d at 1086 (“Plaintiff’s course of treatment, beginning with her surgery . . . and 16 follow-up care . . . , establishes that she persistently sought treatment options for her pain.”); cf. 17 Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (rejecting as improbable theory that 18 Social Security claimant fooled her doctors into treating pain she did not have). 19 In sum, the opinions of Logan’s physicians, her own statements and actions, and the Social 20 Security Administration’s approval decision all support Logan’s claim that she could not do her 21 job as a result of her injury. Prudential, however, denied her long-term disability claim. It relied 22 on the opinions of two medical professionals: Garcia, a nurse, and Brenman, a doctor. 23 The court gives little weight to Garcia’s conclusions. No evidence shows Garcia has 24 training or experience diagnosing or treating injuries like Logan’s. Garcia did not meet or 25 examine Logan. She spoke to her on the phone and reviewed her medical records. See AR 1457– 26 61. She does not explain why she discounted Logan’s description of her symptoms and limits and 27 why she rejected the opinions of Logan’s physicians; she concluded summarily that a 1 “reasonable” employee would already have returned to work. AR 1460–61. Prudential is also 2 Garcia’s employer, so she faced an incentive to give an opinion in Prudential’s favor. 3 Brenman’s opinion offers only meager support to Prudential’s decision. Although 4 Brenman is qualified to opine about injuries like those Logan suffered, given that he is a 5 physician with a board certification in physical medicine, rehabilitation, and pain management, 6 see AR 1715, he is not more qualified than Logan’s own physicians. Barad is an orthopedic 7 surgeon and Le is a physical therapist. See AR 251, 1784–86. And unlike Brenman, Barad and 8 Le examined and treated Logan extensively. Each met with her several times. Brenman did not 9 examine or meet Logan. He relied only on her written medical records. 10 The court recognizes “there is nothing inherently improper with relying on a file review, 11 even one that disagrees with the conclusions of a treating physician.” Shaw v. AT & T Umbrella 12 Ben. Plan No. 1, 795 F.3d 538, 550 (6th Cir. 2015) (quoting Calver v. Firstar Fin. Inc., 409 F.3d 13 286, 297 n.6 (6th Cir. 2005)). But the plan here gave Prudential authority to request an in-person 14 examination. AR 81. Its decision not to exercise that right “‘raises questions’ about the 15 thoroughness and accuracy of the benefits determination.” Montour, 588 F.3d at 634 (alterations 16 omitted) (quoting Bennett v. Kemper Nat’l Sevs., Inc., 514 F.3d 547, 554 (6th Cir. 2008)). 17 That is not the only fault in Brenman’s analysis. Brenman’s conclusions rest largely on 18 his observations about what is missing, that is an absence of explanation or information in her 19 records. See, e.g., AR 1714 (“There is no consistent documentation or multiple notes that support 20 the claimant’s left shoulder is causing any limitation or restrictions. There is no documentation 21 that supports that the claimant cannot stand or sit no more than 10 minutes at a time.”). But in 22 fact Brenman relied on her medical records selectively. As Logan points out, for example, 23 Brenman cited her complaints of pain in the months following her first operation, but not in later 24 months, and he minimized the evidence of her pain and discomfort, which included her own 25 description and her prescription for narcotics. See Pl.’s Br. at 14–15 (citing AR 1410–13, 1457– 26 61, 1588–89, 1713–14). Brenman did not explain why he discounted Logan’s own reports of her 27 pain and the side effects of her medication. In short, his analysis was just as likely “a result- 1 oriented review to find inconsistencies” as an objective investigation of her condition. Sullivan v. 2 Prudential Ins. Co. of Am., No. 12- 01173, 2014 WL 3529974, at *33 (E.D. Cal. July 15, 2014). 3 Other courts have discounted Dr. Brenman’s analyses and insurers’ reliance on his 4 opinions analyses for similar reasons. See Tracia v. Liberty Life Assurance Co. of Bos., 5 164 F. Supp. 3d 201, 226 (D. Mass. 2016) (finding Brenman’s opinions “seriously flawed” as 6 result of his inconsistent demands for corroboration of pain); Bradford v. Life Ins. Co. of N. Am., 7 49 F. Supp. 3d 789, 797 (E.D. Wash. 2014) (“Inexplicably, Dr. Brenman opined that Plaintiff ‘has 8 no restrictions to sitting.’ This conclusion runs directly contrary to the [evaluation] upon which 9 Dr. Brenman purported to rely and is manifestly inconsistent with the record as a whole.”); 10 Kaufmann v. Metro. Life Ins. Co., 658 F. Supp. 2d 643, 650 (E.D. Pa. 2009) (rejecting Brenman’s 11 conclusions because he “did not give any rationale, other than a claimed lack of objective 12 findings, for his contradicting or ignoring the treating physicians”). 13 Brenman also was part of an organization, “MES Peer Review Services,” whose 14 physicians regularly consult for plan administrators, such as Prudential. See AR 1709; see also, 15 e.g., Garrison v. Aetna Life Ins. Co., 558 F. Supp. 2d 995, 1002 n.6 (C.D. Cal. 2008) (noting 16 MES’s relationships with insurers like Prudential). Although Brenman’s compensation did not 17 depend on his conclusions, AR 1715, he was engaged by Prudential, so if he and the organization 18 hope to be engaged again in the future, they faced an incentive to favor Prudential. See Demer v. 19 IBM Corp. LTD Plan, 835 F.3d 893, 902 (9th Cir. 2016) (“Even if MetLife operated with no 20 structural conflict, reliance on the reports of its retained experts who have a financial incentive to 21 make findings favorable to MetLife may warrant skepticism.”). 22 For these reasons, Logan has proven she was “disabled” under the terms of the plan, 23 meaning Prudential incorrectly denied her claim for long-term disability benefits. 24 C. Benefits Award 25 Prudential argues that regardless of whether Logan was initially entitled to long-term 26 disability benefits, she would no longer have been eligible after December 27, 2019. Def.’s Br. at 27 18–19. As noted above, to be “disabled,” a plan participant must be under a doctor’s “regular 28 care.” AR 81. The plan defines “regular care” as requiring a participant to be “receiving the 1 most appropriate medical care, which conforms with generally accepted medical standards.” 2 AR 82. Prudential argues that after December 27, 2019, Logan did not follow Le’s advice to treat 3 the painful orthopedic screw in her ankle, which in its view shows she was not “receiving the 4 most appropriate medical care” from that date onward. See Def.’s Br. at 18–19. 5 But Prudential did not rely on this logic to deny Logan’s claim. The court declines to 6 uphold Prudential’s decision for reasons its attorneys have offered only after the fact. See, e.g., 7 Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974 (9th Cir. 2006) (en banc) (rejecting 8 administrator’s attempt to give “new reason for denying benefits” at point in administrative 9 process that “preclud[ed] the plan participant from responding to that rationale for denial at the 10 administrative level”). As with the decisions of an administrative agency, a plan administrator’s 11 decision “must be upheld, if at all, on the same basis” it offers in the administrative process, “not 12 a subsequent rationale articulated by counsel.” Jebian v. Hewlett-Packard Co. Emp. Benefits 13 Org. Income Prot. Plan, 349 F.3d 1098, 1104–05 (9th Cir. 2003) (quoting Federal Power 14 Comm’n v. Texaco, Inc., 417 U.S. 380, 397 (1974)). And in any event, Logan’s “decision not to 15 undergo surgery that could potentially improve her condition does not render her ineligible to 16 receive benefits.” Rios v. Unum Life Ins. Co., No. 19-04100, 2020 WL 7311343, at *3 (C.D. Cal. 17 Dec. 10, 2020), aff’d in relevant part, 2021 WL 6116635 (9th Cir. Dec. 27, 2021). “A plaintiff is 18 neither non-compliant nor is she required to undergo invasive treatments, such as surgery, when 19 the policy does not require her to pursue the most aggressive treatment as a condition of 20 eligibility to receive benefits.” Id. 21 Prudential also asks the court not to make any decisions about whether Logan is entitled to 22 benefits after July 2, 2021. See Def.’s Br. at 19–20. It argues that under the plan, she would not 23 be eligible for long-term disability benefits after that date unless she could not perform the duties 24 “of any gainful occupation for which [she is] reasonably fitted by education, training, and 25 experience.” Id. at 19 (alterations in original) (quoting AR 81). The administrative record does 26 not include information allowing the court to decide whether Logan can perform the duties “of 27 any gainful occupation.” The court will thus remand the matter to Prudential for a decision on 28 that question. See, e.g., Saffle, 85 F.3d at 460 (declining not to award longer-term, broader 1 disability benefits because “there [was] nothing in the administrative record about general 2 disability”). 3 In sum, on the record presently before the court, Logan was disabled throughout the 4 elimination period and was entitled to benefits until July 2, 2021. 5 D. Fees, Interest, and Costs 6 Logan requests an award of fees, interest, and costs. See Compl. at 30; Pl.’s Br. at 20. 7 Prudential makes no arguments in opposition to that request. 8 ERISA permits a district court to award “a reasonable attorney’s fee and costs of action to 9 either party.” 29 U.S.C. § 1132(g)(1). “[A]bsent special circumstances, a prevailing ERISA 10 employee plaintiff should ordinarily receive attorney’s fees from the defendant.” McConnell v. 11 MEBA Med. & Benefits Plan, 778 F.2d 521, 525 (9th Cir. 1985) (quoting Smith v. CMTA-IAM 12 Pens. Tr., 746 F.2d 587, 590 (9th Cir. 1984)). There are no “special circumstances” in this case. 13 Logan is entitled to an award of her reasonable attorneys’ fees and costs. In the absence of 14 information in the record allowing the court to award specific amounts, the court directs the 15 parties to meet and confer about the amount of a reasonable fee and cost award, resorting to 16 motion practice if needed. 17 A district court may also award prejudgment interest in ERISA cases “to compensate a 18 claimant for the loss she incurred as a result of the administrator’s nonpayment of benefits.” 19 Reetz v. Hartford Life & Accident Ins. Co., 294 F. Supp. 3d 1068, 1086 (W.D. Wash. 2018) 20 (citing Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 988 (9th Cir. 2001)). “Whether 21 interest will be awarded is a question of fairness, lying within the court’s sound discretion, to be 22 answered by balancing the equities.” Shaw v. Int’l Ass’n of Machinists & Aerospace Workers 23 Pens. Plan, 750 F.2d 1458, 1465 (9th Cir. 1985) (quoting Wessel v. Buhler, 437 F.2d 279, 284 24 (9th Cir. 1971)). Ordinarily, the appropriate prejudgment interest rate is the rate prescribed in 25 28 U.S.C. § 1961. See Reetz, 294 F. Supp. 3d at 1086. The court awards prejudgment interest at 26 the statutory rate to compensate Logan for the passage of time since plan benefits were first due 27 and unpaid. See Dishman, 269 F.3d at 988 (emphasizing compensation as purpose of pre- 28 judgment interest). 1 IV. CONCLUSION 2 Logan’s motion to expand the administrative record is denied, and the parties’ evidentiary 3 objections are overruled as moot. 4 Logan is “disabled” under the terms of the plan. She is entitled to benefits from June 19, 5 2019 through July 2, 2021 and prejudgment interest on that award at the rate prescribed by 6 28 U.S.C. § 1961. The court remands the matter to allow Prudential to consider whether Logan 7 is entitled to long-term disability benefits after July 2, 2021, subject to Logan’s ability once again 8 to return to this court if she wishes to challenge Prudential’s ultimate determination of this 9 question. 10 The parties are directed to meet and confer with the goal of reaching an agreement on a 11 reasonable award of attorneys’ fees and costs. Within thirty days, the parties must file a joint 12 status report. If the parties reach an agreement on an award, their report should include a 13 proposed order approving the award. If they do not reach an agreement, their report should 14 propose a schedule for briefs on an appropriate award of fees and costs. 15 This order resolves ECF Nos. 17 and 21. 16 IT IS SO ORDERED. 17 DATED: November 9, 2022.