Wallace v. Hartford Life and Accident Insurance Company

• Court: District Court, D. Arizona
• Decided: March 31, 2025
• Docket: 4:23-cv-00071
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jeffery Wallace, No. CV-23-00071-TUC-JGZ

10 Plaintiff, ORDER

11 v.

12 Hartford Life and Accident Insurance Company, 13 Defendant. 14 15 In this action, Plaintiff Jeffery Wallace seeks judgment against Defendant Hartford 16 Life and Accident Insurance Co. (Hartford), declaring him disabled and reinstating long 17 term disability benefits. Now pending before the Court are the parties’ Cross-Motions for 18 Summary Judgment. (Docs. 28, 29.) The motions are fully briefed. (Docs. 32, 33.) The 19 parties submitted an additional Stipulated Chronology of Relevant Facts (Doc. 39), and the 20 Plaintiff submitted a list of relevant facts not within the stipulated chronology (Doc. 38). 21 Having reviewed the parties’ filings and the record, the Court will deny Plaintiff’s Motion 22 (Doc. 29) and grant Defendant’s Motion for Summary Judgment (Doc. 28). 23 I. Background1 24 Plaintiff Jeffery Wallace worked as a mining engineer for Freeport-McMoRan Inc. 25 (Freeport) and its corporate predecessors for 23 years. (Doc. 28 at 3.)2 As a benefit of his

26 1 The Background and Facts are taken from the administrative record and the parties’ filings. The administrative record was submitted in two parts, (Docs. 25, 26). Neither party 27 filed a separate statement of facts in support of their motion or a controverting statement of facts. 28 2 Record citations refer to the page numbers generated by the Court’s CM/ECF filing system. 1 employment, Wallace enrolled in the Group Insurance Policy (the Plan) offered to the 2 employees of Freeport and purchased by Freeport from Defendant Hartford Life and 3 Accident Insurance Co., the administrator of the Plan. (See Doc. 26-11.) The Plan is 4 governed by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, 5 et seq. (See id.) 6 On February 4, 2015, Freeport issued an interoffice memorandum effectively 7 banning employees from taking controlled substances, including prescription medication 8 with sedating effects, while actively working in safety-sensitive positions such as mining 9 engineer. (Doc. 25-7 at 55–56.) On March 22, 2016, Wallace undertook an occupational 10 medical exam by Freeport and was not cleared to return to work due to the medications he 11 was taking at the time. (Doc. 25-8 at 31–32.) Wallace continued to have health issues and, 12 in July 2016, was ultimately diagnosed with fibromyalgia. (Doc. 25-9 at 7–14.) Wallace 13 left work permanently on September 27, 2016. (Doc. 26-4 at 115.) After initially denying 14 benefits, Hartford determined that Wallace was entitled to short term disability (STD) 15 benefits through November 20, 2016. (Id. at 114–17.) Hartford approved Wallace’s long 16 term disability (LTD) benefits beginning March 28, 2017. (Doc. 25-4 at 121.) Wallace’s 17 employment was terminated on April 12, 2017, due to Freeport’s inability to accommodate 18 his medical restrictions. (Doc. 26-4 at 129.) 19 On March 3, 2021, Hartford sent Wallace an annual review letter along with forms 20 to complete and return with medical records showing proof of loss to confirm his continued 21 disability eligibility. (Doc. 25-5 at 100–01.) Upon review of the medical evidence, Hartford 22 terminated Wallace’s claim on January 4, 2022. (Id. at 14–20.) Wallace appealed 23 Hartford’s termination of his claim on August 8, 2022. (Doc 25-7 at 25–38.) Hartford 24 retained an independent panel of doctors to perform a tri-morbid review. The panel found 25 insufficient support for any restrictions and limitations (R&Ls). (Id. at 16.) Wallace 26 appended his appeal with an additional report from his primary care physician (PCP), Dr. 27 Marsh, responding to the panel report, (Doc. 25-6 at 72–73), and Hartford’s independent 28 reviewers issued addenda confirming their findings, (Id. at 30–42). On October 27, 2022, 1 Hartford issued its final determination letter to Wallace. (Doc. 25-4 at 121.) The letter 2 detailed the evidence reviewed and concluded, “based on the weight of the medical, 3 vocational and overall claim evidence; we find that [Wallace] does not meet the Any 4 Occupation definition of Disability as of 1/5/2022 forward and the termination of Mr. 5 Wallace’s claim is upheld on appeal.” (Id. at 121–33; Doc. 25-5 at 1–4.) This action 6 followed. 7 II. Summary Judgment Standard 8 A court must grant summary judgment “if the movant shows that there is no genuine 9 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 10 Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The 11 movant bears the initial responsibility of presenting the basis for its motion and identifying 12 those portions of the record, together with affidavits, if any, that it believes demonstrate 13 the absence of a genuine issue of material fact. Id. at 323. A genuine dispute exists if “the 14 evidence is such that a reasonable jury could return a verdict for the nonmoving party,” 15 and material facts are those “that might affect the outcome of the suit under the governing 16 law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 17 A movant is entitled to judgment as a matter of law against a party who fails to make 18 a showing sufficient to establish the existence of an element essential to that party’s case, 19 and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In 20 Celotex, the Supreme Court explained: “In such a situation, there can be ‘no genuine issue 21 as to any material fact,’ since a complete failure of proof concerning an essential element 22 of the nonmoving party’s case necessarily renders all other facts immaterial. The moving 23 party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed 24 to make a sufficient showing on an essential element of her case with respect to which she 25 has the burden of proof.” Id. at 322–23. 26 At summary judgment, the judge’s function is not to weigh the evidence and 27 determine the truth but to determine whether there is a genuine issue for trial. Id. In its 28 analysis, the court must believe the nonmovant’s evidence and draw all inferences in the 1 nonmovant’s favor. Id. at 255. In reviewing the evidence, the court need only consider the 2 cited materials, but it may consider any other materials in the record. Fed. R. Civ. P. 3 56(c)(3). 4 III. Relevant Facts 5 A. The Plan 6 The Plan issued to Freeport was effective January 1, 2005. (Doc. 26-11 at 5.) Under 7 its terms, any full-time employee is eligible to receive disability insurance for income 8 protection if they become disabled from a covered accidental bodily injury or sickness. 9 (Id.) LTD Benefits become payable to a participant of the Plan if: (1) the participant 10 becomes disabled while insured under the Plan; (2) the participant is disabled throughout 11 the Elimination Period; (3) the participant remains disabled beyond the Elimination Period; 12 (4) the participant is, and has been during the Elimination Period, under the Regular Care 13 of a Physician; and (5) the participant submits Proof of Loss satisfactory to Hartford. (Id. 14 at 8.) The Elimination Period means “the period of time [a participant] must be Disabled 15 before benefits become payable,” which is 180 days per the Plan. (Id. at 5.) 16 To be considered “Disabled,” a participant must prove: (1) during the Elimination 17 Period, the participant is prevented from performing one or more of the Essential Duties of 18 “Your Occupation”; (2) for the 24 months following the Elimination Period, the participant 19 is prevented from performing one or more of the Essential Duties of Your Occupation and, 20 as a result, the participant’s Current Monthly Earnings are less than 80% of their Indexed 21 Pre-disability Earnings; and (3) after the 24 months following the Elimination Period, the 22 participant is prevented from performing one or more of the Essential Duties of Any 23 Occupation. (Id. at 21.) 24 Under the Plan, “Your Occupation” means “your occupation as it is recognized in 25 the general workplace. Your Occupation does not mean the specific job you are performing 26 for a specific employer or at a specific location.” (Id. at 22.) “Any Occupation” means “an 27 occupation for which you are qualified by education, training or experience, and that has 28 an earnings potential greater than an amount equal to the lesser of the product of your 1 Indexed Pre-disability Earnings and the Benefit Percentage for which you enrolled and the 2 Maximum Monthly Benefit shown in the Schedule of Insurance.” (Id. at 20.) The “Any 3 Occupation” standard applied to Wallace as of March 28, 2019. (Doc. 28 at 4.) 4 The Plan gives Hartford “full discretion and authority to determine eligibility for 5 benefits and construe and interpret all terms and provisions of the Group Insurance Policy.” 6 (Doc. 26-11 at 20.) Benefits will terminate on the date a participant is no longer Disabled. 7 (Id. at 9.) The Policy states: “[Hartford] may request Proof of Loss throughout Your 8 Disability.” (Id. at 17.) 9 B. Defendant’s First Termination of Benefits 10 In October 2018, Hartford began collecting records for an investigation to determine 11 whether Wallace would qualify as disabled under the stricter “Any Occupation” standard. 12 (Doc. 25-4 at 63–64.) Hartford paid benefits during the investigation. (Doc. 25-5 at 137.) 13 Dr. Tecaya, Wallace’s naturopath, and Dr. Marsh, Wallace’s family care practitioner, each 14 submitted an “attending physician statement” (APS) as well as narrative letters in support 15 of the disability determination. (Doc. 28 at 5.) Dr. Tecaya found Wallace could sit for an 16 hour at a time, up to four hours per day, stand for an hour, and walk for an hour. (Doc. 26- 17 3 at 62–64.) Dr. Marsh found Wallace could sit for an hour at a time up to four hours per 18 day, stand for two hours, and walk for one hour. (Id. at 16.) As such, according to Wallace’s 19 treating doctors, Wallace could work up to six hours per day. Dr. Selz, Wallace’s 20 psychologist, did not submit an APS, but provided office notes. (Doc. 26-2 at 119–29.)3 21 A Hartford behavioral health case manager determined that there was no support for 22 psychiatric R&Ls. (Doc. 25-4 at 12.) But because Wallace’s neuropsychological testing 23 was outdated, Hartford provided its behavioral health report to Dr. Domingo, an internal 24 neuropsychological medical director, to determine if cognitive improvement would be 25 expected. (Id.) Dr. Domingo opined that Wallace’s cognitive functioning would improve 26 with treatment and recommended Hartford reach out to Dr. Selz about repeat testing. (Id.

27 3 In December 2018, Wallace was denied Social Security Disability Insurance (SSDI) when the Social Security Administration (SSA) found Wallace “still able to stand, walk 28 and sit for periods of time.” (Doc. 26-3 at 53–56.) 1 at 5–6.) Hartford attempted to contact Dr. Selz but was unsuccessful. (Doc. 25-3 at 132; 2 Doc 25-4 at 5.) Thereafter, Hartford asked a third-party vendor to coordinate a review of 3 the file by an independent board-certified physician to assess Wallace’s cognitive and 4 physical R&Ls. (Doc 25-4 at 40–41.) Dr. Khanna, an occupational medical physician, 5 provided a report on March 14, 2019, in which he opined that Wallace could stand or walk 6 for one hour at a time up to eight hours a day, lift 20 pounds, and push or pull 30 pounds. 7 (Doc. 25-13 at 113–25.) Dr. Khanna explained that the lifting restrictions were not based 8 on an in-person exam, but were consistent with a fibromyalgia diagnosis, and that 9 Wallace’s reported immune deficiency was a lab diagnosis that had not yet manifested. (Id. 10 at 121–22.) Dr. Khanna declined to address Wallace’s cognitive impairment because 11 mental health was “out of [his] scope of practice.” (Id. at 122–23.) Dr. Khanna attempted 12 to reach Drs. Tecaya and Marsh for comment but was unable to speak to either. (Id. at 120.) 13 A copy of Dr. Khanna’s report was sent to Drs. Tecaya and Marsh for review, comment, 14 and to ask about further neuropsychological testing. (Doc. 25-5 at 138–41.) 15 Hartford conducted an Employability Analysis using the Occupational Access 16 System (OASYS) with information provided, in part, in Dr. Khanna’s report, to determine 17 whether there were occupations for which Wallace was qualified that met the earning 18 requirements under the Plan and were consistent with the reported physical R&Ls. (Doc. 19 25-15 at 102–14.) The March 26, 2019 Employability Analysis Report (EAR) concluded 20 that Wallace could physically perform the occupation of mining engineer. (Id. at 104.) 21 Because Wallace’s physicians did not respond to the various requests for comment, 22 Hartford’s clinical team recommended a neuropsychological independent medical 23 examination (IME). (Doc. 25-3 at 114.) Hartford hired another third-party vendor, who 24 selected an independent physician, Dr. John Tsandis, to conduct the IME. (Doc. 25-15 at 25 30–44.) Dr. Tsandis reviewed all medical records and conducted in-person 26 neuropsychological testing on May 8, 2019. (Id.) In his May 22, 2019 report, Dr. Tsandis 27 concluded determinations based on Wallace’s 2017 neuropsychological testing were not 28 well supported and that Wallace likely used insufficient effort during that testing. (Id. at 1 43.) Dr. Tsandis found that Wallace’s self-reports of fatigue were likely unreliable as 2 Wallace performed better on more difficult tasks later in the afternoon. (Id. at 42–43.) Dr. 3 Tsandis concluded that there was no support for a neurocognitive disorder and that no 4 neuropsychological R&Ls were supported. (Id.) 5 Hartford provided Dr. Tsandis’s IME report to Drs. Tecaya, Marsh, and Selz. (Doc. 6 25-5 at 127–32.) Dr. Tecaya disagreed with Dr. Tsandis’s conclusions. (Doc. 25-15 at 26.) 7 Dr. Marsh responded with previous disagreements to Dr. Khanna’s report, but did not 8 comment on Dr. Tsandis’s IME report. (Id. at 17.) Dr. Selz disagreed with Dr. Tsandis’s 9 IME report, but admitted she had not conducted formal testing, stating that she simply 10 observed the cognitive deficits. (Id. at 7.) Hartford completed its review of Wallace’s 11 benefit claim, determining that he did not meet the policy definition of Disability beyond 12 June 13, 2019, and terminated his LTD benefits. (Doc. 25-5 at 119–26.) 13 Wallace appealed the determination through counsel, submitting additional 14 materials including information about his specific job, a report from a privately hired 15 vocational expert, a list of Wallace’s current medications, and declarations from family and 16 friends. (Doc. 25-13 at 31–126; Doc. 25-14 at 2–36.) Hartford obtained a tri-morbid review 17 through an additional vendor consisting of Dr. Panzer, a psychologist, Dr. Lecovin, a 18 naturopath, and Dr. Schiopu, a rheumatologist. (Doc. 25-12 at 154–70; Doc. 25-13 at 2– 19 23.) The reviewers issued a report on January 15, 2020, which outlined the following 20 R&Ls: sitting up to one hour at a time with five minute breaks for up to eight hours; 21 standing for up to one hour at a time for two hours a day; walking up to 30 minutes at a 22 time for up to four hours per day; rarely lift/carry 20 pounds; and change position every 30 23 minutes without interrupting workflow. (Doc. 25-13 at 14.) Based on the R&Ls, Hartford 24 obtained an EAR on January 17, 2020 that showed the occupation of mining engineer had 25 lifting requirements inconsistent with the R&Ls. (Doc. 25-12 at 147–48.) Hartford then 26 reinstated benefits on January 21, 2020. (Doc. 25-5 at 110.) 27 // 28 // 1 C. Social Security Determination 2 Wallace was adjudicated as disabled by the SSA through a determination of an 3 administrative law judge (ALJ), awarding Wallace with SSDI. (Doc. 25-10 at 7–16.) 4 Wallace provided Hartford with proof of the award in January 2021. (Doc. 25-12 at 53.) 5 Wallace did not provide Hartford the underlying medical evidence submitted to the ALJ 6 but provided the ALJ’s findings and recommendation in support of the award and the SSA 7 determination letter. (See id.) The ALJ found Wallace had residual capacity for light-duty 8 work, with exceptions, and that Wallace was not impaired by a neurocognitive disorder. 9 (Doc. 25-10 at 11–12.) In the determination, Wallace received an age-related presumption 10 against transferrable skills, and no suitable alternative occupation was identified. (Id. at 11 13.) The ALJ also found that “the demands of [Wallace’s] past relevant work history 12 exceed the residual functional capacity.” (Id.) The ALJ primarily relied on the clinical 13 report by Dr. Rothbaum, which was not submitted to Defendant for its review. 14 D. Defendant’s Second Termination of Benefits 15 Hartford sent Wallace an annual review letter on March 3, 2021, along with an 16 information release authorization and other forms to complete and return. (Doc. 25-5 at 17 100.) Wallace returned the signed authorization to Hartford on April 8, 2021. (Doc. 25-11 18 at 154.) In accordance with the authorization, Hartford requested updated medical records 19 from Wallace’s healthcare providers. (Doc. 25-3 at 2–28.) Hartford received updated 20 medical records from five medical providers, but none described any R&Ls nor provided 21 an APS along with their records. (Doc. 25-11 at 23–29, 68–146, 184–99.) Hartford’s 22 review found that most of the examinations within these records revealed normal 23 functionality. (Doc. 28 at 9.) 24 Dr. Marsh responded to the medical records request on June 9, 2021, with an opinion 25 letter in support of Wallace’s continued diagnosis, but did not provide any medical records 26 for review. (Doc. 25-11 at 14.) Dr. Tecaya responded with an opinion letter in favor of 27 Wallace’s continued diagnosis, but also failed to provide any objective medical reports for 28 review. (Doc. 25-9 at 5.) Hartford attempted to communicate with Drs. Marsh and Tecaya 1 in October 2021 to clarify the information they provided but received no responses. (Doc. 2 25-5 at 33–46; Doc. 25-2 at 68–70.) In turn, Hartford hired a fourth outside vendor to 3 coordinate an IME, which was completed by Dr. Brian McCrary, a board-certified 4 occupational medicine doctor, on November 16, 2021. (Doc. 25-10 at 75–82.) Wallace was 5 accompanied to the IME by Gretchen Van Maren, a retired anesthesiologist. (Doc. 25-10 6 at 75.) At the time of Dr. McCrary’s examination, Hartford had not received a medical 7 record from Dr. Marsh since October 2019, nor from Dr. Tecaya since February 2018. 8 (Doc. 25-8 at 106–08; Doc. 26-9 at 120–23.) Dr. McCrary’s exam revealed no restrictions 9 or impairment. (Doc. 25-10 at 77–79.) Hartford provided Wallace’s doctors with the IME 10 results and asked for a response. (Doc. 25-5 at 21–22, 25–26.) Wallace’s doctors did not 11 immediately respond to the IME results. (Doc. 25-2 at 45–48.) 12 At that point, the only support Wallace had from medical professionals for the 13 review period beginning March 3, 2021, were the letters from Dr. Marsh, dated June 9, 14 2021, and Dr. Tecaya, dated May 7, 2021. (Id. at 16–18.) The remaining materials either 15 indicated that Wallace’s function was in a normal limit, did not indicate information 16 relevant to a determination, or provided information outside the relevant time frame for the 17 determination. (Id.) Based on the information provided by Wallace and gathered 18 independently, Hartford obtained another EAR which indicated Wallace could perform his 19 own occupation. (Doc. 25-10 at 62–65.) Hartford made the determination that Wallace 20 could perform light work and, therefore, could qualify for positions under the Any 21 Occupation standard that would pay more than 50% of his Indexed Pre-Disability Earnings. 22 (25-2 at 25.) Hartford terminated Wallace’s claim by letter, stating that he did not meet the 23 policy definition of “Disability” for beyond January 4, 2022. (Doc 25-5 at 14–20.) 24 E. Wallace Appeals Termination of Benefits. 25 Wallace appealed Hartford’s termination of his claim on August 8, 2022. (Doc 25- 26 7 at 25–38.) Hartford hired a third-party vendor to conduct a tri-morbid review from three 27 independent board-certified doctors: Drs. Vincent, Kretzmann, and Jasso. (Doc. 25-6 at 28 134–46; Doc. 25-7 at 2–19.) Each physician reviewed the file compiled by Hartford, 1 including new materials submitted on appeal, and concluded that there was no basis for 2 R&Ls or cognitive impairment. (Doc. 25-7 at 16.) 3 Hartford sent the report from the tri-morbid review to Wallace’s counsel on 4 September 8, 2022. (Doc. 25-5 at 8–9.) Wallace’s counsel responded with a letter dated 5 September 23, 2022, disputing various portions of the materials and providing an additional 6 opinion letter from Dr. Marsh. (Doc. 25-6 at 89–93.) Dr. Marsh’s letter stated that the 7 medications prescribed to Wallace could have side effects and that it was his opinion 8 Wallace was unable to work. (Id. at 92–93.) Hartford provided the letter to the reviewing 9 doctors. (Id. at 30–32, 35–36, 41–42.) The reviewing doctors issued an addendum in 10 response to Dr. Marsh’s letter, confirming their initial findings. (Id. at 30–32.) Hartford 11 provided the addenda to Wallace on October 12, 2022 for comment. (Doc. 25-5 at 5–6.) 12 Wallace declined. (Doc. 25-6 at 26.) Hartford ultimately found that there was not enough 13 evidence to continue the payment of benefits to Wallace, and the final determination on 14 appeal was issued to Wallace on October 27, 2022. (Doc. 25-4 at 121–33; Doc. 25-5 at 2– 15 4.) Wallace then initiated the instant lawsuit. 16 IV. Discussion 17 In his Motion for Summary Judgment, Wallace argues that Hartford acted with 18 conflict of interest and bias beyond what characterizes a full and fair review, abused its 19 discretion in terminating his LTD benefits, and asks the Court to find that he is disabled 20 and rule that benefits be reinstated. (Doc. 29 at 21.) Hartford argues that Wallace has failed 21 to meet his burden of proving entitlement to LTD benefits under any standard of review 22 and asks the Court to find that Hartford did not abuse its discretion in terminating Wallace’s 23 benefits. (Doc. 28 at 18.) For the reasons set forth in this Order, the Court concludes that 24 Hartford did not abuse its discretion in determining that Wallace did not meet his burden 25 of proof under the Plan’s “Any Occupation” standard. 26 A. Standard of Review 27 The Court will review Hartford’s decision to terminate benefits under the “abuse of 28 discretion” standard. The default standard of review for a court reviewing a decision by the 1 administrator of a plan governed by ERISA is de novo. Firestone Tire & Rubber Co. v. 2 Bruch, 489 U.S. 101, 112 (1989). However, “if the plan does confer discretionary authority 3 as a matter of contractual agreement, then the standard of review shifts to abuse of 4 discretion.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) 5 (emphasis in original). A plan administrator abuses its discretion if the decision to 6 terminate benefits was “(1) illogical; (2) implausible; or (3) without support in inferences 7 that may be drawn from the facts in the record.” Salomaa v. Honda Long Term Disability 8 Plan, 642 F.3d 666, 676 (9th Cir. 2011) (quoting U.S. v. Hinkson, 585 F.3d 1247, 1262 9 (9th Cir. 2009) (en banc)). Under this standard, the Court does not decide whether the plan 10 administrator made the correct decision to terminate benefits, but whether such decision 11 was reasonable. Id. at 674–75. The Court must consider all relevant circumstances and 12 factors. Pac. Shores Hosp. v. United Behav. Health, 764 F.3d 1030, 1041 (9th Cir. 2014). 13 Here, the Plan expressly gives Hartford the authority to determine when a 14 participant has established the required “Proof of Loss” to be entitled to a Plan benefit. 15 (Doc. 26-11 at 18.) As such the Plan gives Hartford discretionary authority, and the Court 16 will review whether Hartford abused its discretion in its decision to terminate benefits to 17 Wallace. See Abatie, 458 F.3d at 963. 18 B. Conflict of Interest 19 Where “the entity that administers the plan, such as an employer or insurance 20 company, both determines whether an employee is eligible for benefits and pays benefits 21 out of its own pocket…this dual role creates a conflict of interest.” Metro Life Ins. Co. v. 22 Glenn, 554 U.S. 105, 108 (2008). “While not altering the standard of review itself, the 23 existence of a conflict of interest is a factor to be considered in determining whether a plan 24 administrator has abused its discretion.” Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 25 917, 929 (9th Cir. 2012) (citing Glenn, 554 U.S. at 108). “[T]he significance of the factor 26 will depend upon the circumstances of the particular case,” Glenn, 554 U.S. at 108, and 27 “the likelihood that the conflict impacted the administrator’s decisionmaking,” Stephan, 28 697 F.3d at 929. Where evidence of bias exists, “the conflict ‘should prove more 1 important,’” but where “an insurer has ‘taken active steps to reduce potential bias and 2 promote accuracy,’ the conflict may be given minimal weight.” Id. at 929 (quoting Glenn, 3 544 U.S. at 117). Wallace has the initial burden to present material, probative evidence 4 tending to show Hartford’s self interest influenced its decision to terminate benefits, which 5 Hartford may rebut. See Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1295 (9th Cir. 6 2010) (citing Tremain v. Bell Indus., Inc., 196 F.3d 970, 976 (9th Cir. 1999)); Demer v. 7 IBM Corp. LTD Plan, 835 F.3d 893, 902 (9th Cir. 2016). 8 Here, Hartford both administers the Plan and pays benefits to the participants. Thus, 9 Hartford has a structural conflict of interest, and the Court will apply a higher degree of 10 skepticism when determining whether Hartford abused its discretion in terminating 11 Wallace’s LTD benefits. In its determination, the Court is mindful that, because “the Plan 12 is at the center of ERISA,” administrators have a duty to all beneficiaries to preserve plan 13 assets and must strictly enforce the plan’s proof requirements to approve only proven 14 claims per the plan’s terms. Conkright v. Frommert, 559 U.S. 506, 520 (2010); see 15 Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 589 (8th Cir. 1999) (“[An 16 administrator] breaches its duty to all claimants as a fiduciary of the benefit funds when it 17 grants claims to unqualified claimants.”). 18 1. Evidence of Bias Affecting the Conflict of Interest Factor and the Reasonableness of Hartford’s Determination 19 Wallace argues nine actions show that Hartford “acted with a conflict of interest and 20 bias well beyond what characterizes a full and fair review.” (Doc. 29 at 9.) Simultaneously, 21 Wallace appears to argue these same nine actions show Hartford abused its discretion when 22 it terminated his benefits. (Id. at 10–21.) The Court considers each of Plaintiff’s allegations 23 in turn and considers both: (1) whether the evidence shows bias requiring the Court to view 24 Hartford’s conflict of interest with heightened skepticism; and (2) whether the evidence 25 shows Hartford abused its discretion, i.e., whether Hartford’s decision was unreasonable. 26 // 27 // 28 1 a. Consideration of the ALJ’s Findings 2 Wallace asserts that Hartford failed to address the ALJ’s detailed findings and 3 discussion of witnesses and evidence, gave no weight to the ALJ’s credibility 4 determinations, and failed to address the ALJ’s reasons for relying on consultive examiner 5 Jerome Rothbaum. (Id. at 11.) Wallace states that none of Hartford’s reviewers were aware 6 of Dr. Rothbaum’s work or the ALJ’s high opinion of his conclusions. (Id.) Wallace asserts 7 that Dr. McCrary could not have been aware of the ALJ’s findings and the evidence 8 providing the foundation for those findings because Dr. McCrary wrote that he was not 9 provided records more recent than 2019. (Id.) 10 Hartford reviewed the materials that were provided by Wallace, which included the 11 ALJ’s findings and award, but not the underlying medical evidence. (Id.) Wallace did not 12 provide Hartford with his SSDI file or Dr. Rothbaum’s report. (Doc. 32 at 14–15.) And, 13 importantly, the SSA issued its award based on an October 2020 hearing. (Id. at 14.) As of 14 that date, Hartford was still paying Wallace benefits; Dr. McCrary had not yet performed 15 an IME; and the tri-morbid independent medical reviews/addenda had not been created. 16 (Id.) The ALJ decision does not reference Dr. Tsandis’s neuropsychological testing, any of 17 the independent medical reviews that existed prior to October 2020, or the records from 18 Ms. Thiem. See Austin-Conrad v. Reliance Standard Life Ins. Co., No. 14-CV-00127, 2016 19 WL 5400366, at *8 (W.D. Ky. Sept. 26, 2016) (stating plan administrator may discount 20 SSA decision based on outdated medical records and records that had not been updated). 21 Moreover, according to the SSA decision, Dr. Rothbaum determined that Wallace could 22 perform light-duty work with some mild restrictions. (Doc. 25-10 at 12.) The ALJ also 23 found that the Wallace “has the residual capacity to perform light work.” (Id. at 11–12.) 24 While plan administrators cannot arbitrarily disregard an SSA determination of 25 disability, they are also not bound to the ALJ’s ruling. Montour v. Hartford Life & Acc. 26 Ins. Co., 588 F.3d 623, 635 (9th Cir. 2009). “Ordinarily, a proper acknowledgment of a 27 contrary SSA disability determination would entail comparing and contrasting not just the 28 definitions employed but also the medical evidence upon which the decisionmakers relied.” 1 Id. at 636. Here, while the ALJ adjudicated Wallace “disabled” for the purposes of SSDI, 2 the underlying findings align with those of Hartford—that Wallace can undertake light 3 work. (Doc. 25-5 at 18.) In fact, the R&Ls as determined by Hartford appear to be in line 4 with the determination of the ALJ. 5 The record does not show that Hartford ignored or disregarded the findings of the 6 ALJ without basis. Further, Wallace has failed to show that the findings of the ALJ, when 7 applied to the “Any Occupation” standard of the ERISA-governed Plan, would have 8 necessarily produced a different determination. Therefore, Hartford’s consideration of the 9 ALJ’s findings was not an abuse of discretion, nor does it show that Hartford acted with 10 bias. 11 b. Consideration of Medication Side Effects 12 Wallace has not submitted medical evidence that he suffered from medication side 13 effects; he relies on observational statements from medical providers and lay persons. 14 (Doc. 29 at 11–12.) The court in Demer held that, based on the undisputed record, 15 administrators may not attack the credibility of subjective testimony relating to medication 16 side-effects without specific reasons supported by the record. 835 F.3d at 905. In Demer, 17 it was undisputed that: (1) the claimant was taking “powerful narcotic and other 18 medications, prescribed in attempts to manage his pain”; (2) the medications were 19 medically necessary; and (3) the prescribed medications have known side effects. Id. at 20 904–05. 21 Hartford argues that while Wallace was prescribed certain medications that may 22 cause side effects, there is no medical evidence that Wallace was in fact taking those 23 medications either during the review period or beyond January 4, 2022. (Doc. 32 at 8.) 24 Hartford asserts that because Plaintiff did not provide medical records after the beginning 25 of the review period on March 21, 2021, there is no record to show what medications he 26 was taking at the time, or if he was on any of the medications reviewed by his paid expert, 27 Professor Ronaldson, beyond the termination date of January 4, 2022. (Id.) In the records 28 of Wallace’s pain management provider, from July 27, 2020 through April 12, 2021, 1 Wallace denied having any medication side effects. (Doc. 25-11 at 185, 187, 189, 191, 193, 2 195, 197, 199.) Further, Wallace did not report to Dr. McCrary during the IME that he was 3 experiencing any side-effects from his medication. (Doc. 25-10 at 75–76, 78–79.) 4 Wallace argues the report of the paid expert, Professor Ronaldson, is proof that the 5 medications prescribed to him have cognitively impairing side-effects. (Doc. 29 at 11–12.) 6 Hartford does not dispute that there are side-effects associated with the medications 7 reviewed by Professor Ronaldson, but it does dispute that there is any evidence proving 8 that Wallace was taking those medications or that he had any of the possible side-effects 9 during the review period beginning March 21, 2021 or beyond the January 4, 2022 10 termination date. (Doc. 32 at 8.) Professor Ronaldson states that the medications listed are 11 “likely to” or “can” produce impaired cognitive performance. (Doc. 25-9 at 78.) But 12 Professor Ronaldson does not state that these drugs always cause those side-effects, nor 13 does Ronaldson opine on whether Wallace suffers from those side-effects. Plaintiffs further 14 rely on the September 22, 2022 letter from Dr. Marsh stating that there is a certainty those 15 medications will have side-effects. (Doc. 25-6 at 72.) Dr. Marsh does not describe what 16 side-effects Wallace is currently suffering, nor any that he had specifically suffered in the 17 past, but simply directs the reader to the website for the drug Lyrica as an example of “how 18 one medication can affect a person’s mental and physical condition.” (Id. at 72–73 19 (emphasis added).) Further, Plaintiff points to a November 13, 2019 report by Marcy 20 Tigerman, an occupational rehabilitation consultant. (Doc. 29 at 12.) Tigerman is not a 21 doctor, and as such, her review of medical records does not constitute a diagnosis. (Doc. 22 25-13 at 54.) Further, Tigerman explicitly states that her scope of practice is to “quantify 23 the extent of movement and functionality to occupational examples.” (Id.) Tigerman did 24 not physically examine Wallace but conducted an interview. (Id.) While Tigerman opines 25 on the likelihood of side-effects of the medication, Tigerman does not directly state that 26 she witnessed cognitive impairment as Plaintiff suggests. 27 The only other evidence to which Plaintiff points falls prior to the start of the review 28 period beginning March 21, 2021, and are likely materials from the Plaintiff’s previous 1 appeal, namely, office notes by Dr. Selz dated November 2018 and letters from Dr. Tecaya 2 dated April and November 2018. 3 Accordingly, because (1) the record is disputed as to whether Wallace was in fact 4 taking the listed and analyzed medications, a burden of proof for which he is responsible, 5 and (2) Hartford points to specific evidence in the record as the basis for discrediting 6 Plaintiff’s subjective side-effect testimony, the Court finds that Plaintiff has failed to show 7 that Hartford acted with bias or abused its discretion. 8 c. Failure to Provide Reviewers with Evidence 9 Plaintiff argues that Hartford abused its discretion by not providing all relevant 10 evidence to its reviewers. (Doc. 29 at 12–13.) Hartford requested medical records, 11 treatment notes, or test results from Plaintiff on at least seven occasions through written 12 requests to Plaintiff, Plaintiff’s counsel, and Plaintiff’s medical providers. (Doc. 25-8 at 13 110; Doc. 25-5 at 55, 60–64, 74, 79, 81–82, 89–91.) When Hartford thought that the 14 documentation provided to them was not of the quality required to complete a good-faith 15 review of Plaintiff’s claim, Hartford followed up with Plaintiff, Plaintiff’s counsel, or 16 Plaintiff’s medical providers. (Doc. 25-8 at 110.) Under the terms of the Plan, Plaintiff has 17 the responsibility and burden to provide Hartford with the requisite documentation of proof 18 of loss. (Doc. 26-11 at 9.) The most recent medical record provided to Hartford that 19 supported Plaintiff’s position is an October 23, 2019 office visit note from Dr. Marsh. (Doc. 20 32 at 2; Doc. 25-8 at 87–89.) 21 Plaintiff specifically argues that Hartford did not supply Dr. McCrary or its other 22 reviewers with Dr. Rothbaum’s report, the ALJ’s findings, or Dr. Marsh’s October 5, 2021 23 letter. (Doc. 29 at 12–13.) As discussed above, Plaintiff has never provided Dr. Rothbaum’s 24 report to Hartford. Further, the ALJ’s SSDI determination is not a medical record from 25 which a reviewing doctor, such as Dr. McCrary, would be able to reasonably make any 26 medical judgments. The ALJ findings rely heavily on Dr. Rothbaum’s medical report, 27 which again, was not provided to either Hartford or this Court for review. Dr. Marsh’s 28 October 5, 2021 letter, which the Plaintiff asserts is a “report with extensive handwritten 1 opinions,” is a six-page form letter generated by Hartford requesting additional information 2 from Dr. Marsh and providing areas for handwritten response. (Doc. 25-8 at 110–15.) On 3 the front page of that letter, it is requested: “please included [sic] any recent office notes or 4 testing with return of this completed form.” (Id. at 110.) Dr. Marsh references numerous 5 objective tests that are “in your possession,” as well as the reports of five other medical 6 providers (Id. at 112, 114.) However, Dr. Marsh did not provide office notes, test results, 7 nor other objective medical reports along with this response letter. As discussed previously, 8 Hartford did not have any objective medical reports, test results, or office notes from Dr. 9 Marsh during the review period beginning March 21, 2021, and many of the reports from 10 other service providers did not support Wallace’s claimed R&Ls. It is unclear to the Court, 11 and Plaintiff fails to explain, how Dr. McCrary would have been able to rely on these 12 handwritten notes to make a determination during the IME. 13 As such, Plaintiff has failed to show that Hartford acted with bias or abused its 14 discretion.4 15 d. Requiring “Objective” Medical Evidence 16 Plaintiff argues that Hartford set an unrealistic and unobtainable standard for the 17 objective medical evidence that they would require for Plaintiff to meet his burden of proof 18 in submitting his claim. (Doc. 29 at 13–14.) 19 Courts have found that when a plan administrator has required overly objective 20 testing or clinical data from plan recipients to prove their disability, the administrator has 21 abused its discretion. See Montour, 588 F.3d 623; see also Salomaa, 642 F.3d at 676. 22 Plaintiff cites two cases in support, Montour and Kennedy v. Lilly Extended Disability Plan, 23 856 F.3d 1136 (7th Cir. 2017).

24 4 Plaintiff also argues Hartford should have provided its reviewers with letters from his attorney and another attorney, Tamara Crockett, alleging Dr. McCrary performs IMEs in a 25 biased manner, Ms. Van Maren’s declaration that McCrary’s examination of Wallace did not conform to the usual standard of care, and the results of surveillance by Hartford’s 26 private investigators. (Doc. 29 at 13.) Plaintiff does not explain how this information would be relevant for Hartford’s reviewers to assess the medical evidence and the medical validity 27 of Dr. McCrary’s examination, nor does he cite to any authority suggesting that Hartford had a responsibility to provide such information to its reviewers. This evidence, and 28 Hartford’s own consideration of it, is addressed below. See discussion supra Sections IV.B.1.h–i. 1 In Montour, the court stated that “it would probably be unreasonable for Hartford 2 to require Montour to produce objective proof of his pain level.” 588 F.3d at 635. The 3 record here shows that Hartford did not ask for specific objective findings of Wallace’s 4 pain level, but simply requested some objective medical records or test results that 5 supported Wallace’s R&Ls, rather than the multiple subjective opinion letters which were 6 provided by Plaintiff. (Doc. 25-8 at 110; Doc. 25-11 at 38, 53.) 7 In Kennedy, the court pointed out that it is error to demand laboratory data to credit 8 the symptoms of fibromyalgia. 856 F.3d at 1139. There is no evidence in the record that 9 Hartford made requests for lab data regarding Wallace’s fibromyalgia symptoms. Rather, 10 Hartford requested medical records, contemporaneous office visit notes, or APSs, which 11 they were not provided with. 12 As such, Plaintiff fails to show Hartford acted with bias, abused its discretion, or 13 that its requests for objective medical evidence were unreasonable in this particular case. 14 e. Refusal to Credit Treating Physicians 15 Plaintiff argues that Defendant did not give proper weight to the opinion of 16 Plaintiff’s treating physicians, including Wallace’s PCP, Dr. Marsh. (Doc. 29 at 14–16.) 17 Plan administrators are not required to give a plan recipient’s PCP special credit, which is 18 precisely what the Plaintiff is arguing for here. Black & Decker Disability Plan v. Nord, 19 538 U.S. 822, 834 (2003). “Plan administrators, of course, may not arbitrarily refuse to 20 credit a claimant's reliable evidence, including the opinions of a treating physician. But . . 21 . courts have no warrant to require administrators automatically to accord special weight 22 to the opinions of a claimant's physician; nor may courts impose on plan administrators a 23 discrete burden of explanation when they credit reliable evidence that conflicts with a 24 treating physician's evaluation.” Id. 25 Plaintiff argues that Dr. McCrary did not give proper weight to Dr. Marsh and Dr. 26 Tecaya’s medical notes and opinions. (Doc. 29 at 14.) Dr. McCrary is not the Plan 27 administrator, and therefore, the weight given by Dr. McCrary to those materials borders 28 on irrelevant when determining if Hartford arbitrarily refused to credit Drs. Marsh or 1 Tecaya. 2 Further, materials submitted for Hartford’s review from Dr. Marsh during the 3 review period beginning March 21, 2021 included only three items: a June 9, 2021 opinion 4 letter; the handwritten notes on the form letter dated October 5, 2021; and Dr. Marsh’s 5 September 13, 2022 rebuttal letter. (Doc. 39-1 at 7–8.) None of those materials are 6 considered objective medical records under the Plan, and even when asked, neither Wallace 7 nor his treating physicians supplied Hartford with records to support Dr. Marsh or Dr. 8 Tecaya’s opinions. (Doc. 25-8 at 110; Doc. 25-5 at 55, 60–64, 74, 79, 81–82, 89–91.) 9 “Nothing in the Act . . . suggests that plan administrators must accord special deference to 10 the opinions of treating physicians. Nor does the Act impose a heightened burden of 11 explanation on administrators when they reject a treating physician's opinion.” Jordan v. 12 Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 878–79 (9th Cir. 2004) 13 (citing Nord, 538 U.S. at 831), abrogated on other grounds by Abatie, 458 F.3d 955. 14 As such the Court finds that the Plaintiff has failed to show that Hartford acted with 15 bias or abused its discretion by crediting objective medical evidence in the record that 16 conflicted with Plaintiff’s treating physicians’ conclusory opinion letters. 17 f. Consideration of Professionals Conscious of Dangers from Mining Fatigue 18 Plaintiff argues that Hartford abused its discretion by “ignor[ing] all professionals 19 conscious of dangers to human life from mining engineer fatigue.” (Doc. 29 at 16–17.) In 20 doing so, Plaintiff ignores the standard proscribed by the Plan under which Hartford is 21 required to review his disability, namely the “Any Occupation” standard. (See id.) Plaintiff 22 argues that the conditions of working as a mining engineer specifically at Freeport, 23 including their memorandum on controlled substances, preclude him from being a mining 24 engineer in the wider work force. (Id.) Even his occupational consultant addresses only the 25 conditions at Freeport: “he was required to walk and climb on uneven surfaces . . . that is 26 why his employer had a policy prohibiting any controlled substances.” (Id. at 16.) Plaintiff 27 does not make any allegations that the conditions present as a mining engineer at Freeport 28 1 are standard throughout the industry, nor does he introduce any evidence that he would be 2 unable to perform this occupation at another mining company in the national economy. 3 Plaintiff does not cite any case law to support his argument. As such, Plaintiff has failed to 4 show that Defendant abused its discretion or acted with bias. 5 g. Consideration of Treating Physician and Lay Witness Opinions 6 Plaintiff argues that Defendant abused its discretion by ignoring the opinion of his 7 treating physician and other lay witnesses. (Doc. 29 at 17–18.) Specifically, Plaintiff asserts 8 that Hartford abused its discretion by concluding that “the basis for granting benefits for 9 many years is no longer relevant once an investigation begins.” (Id. at 18.) Plaintiff cites 10 two cases to support this assertion, Kurth v. Hartford Life & Acc. Ins. Co., 845 F. Supp. 2d 11 1087 (C.D. Cal. 2012) and Hertz v. Hartford Life & Acc. Ins. Co., 991 F. Supp. 2d 1121 12 (D. Nev. 2014). In Kurth, the district court found that Hartford failed to point to specific 13 parts of the medical record to refute a doctor’s prior diagnosis, and failed to adequately 14 explain why that prior diagnosis was “sufficient for it to grant benefits for a time, and yet 15 completely unacceptable once the investigation began.” 845 F. Supp. 2d at 1101. Here, 16 Hartford has pointed to objective medical evidence that sufficiently refutes the prior 17 diagnosis of Wallace being “totally disabled.” There is no evidence that Hartford relied on 18 any subjective evidence to grant Wallace his LTD benefits previously, nor that Hartford 19 relied on that same evidence to terminate his LTD benefits in the immediate case. Further, 20 the ALJ determination on which Wallace consistently relies, also found residual physical 21 capacity, indicating that he is not “totally disabled.” 22 In Hertz, the district court found that Hartford had previously determined that the 23 participant was disabled by relying on the same non-objective evidence that it then rejected. 24 991 F. Supp. 2d at 1141. This is also not the case here, as Hartford previously relied on 25 objective medical evidence to determine that Wallace was disabled, and then in turn, relied 26 on objective medical evidence to determine that Wallace was not disabled. Accordingly, 27 Plaintiff has failed to show that Hartford abused its discretion or acted with bias. 28 // 1 h. Failure to Share Results of Surveillance 2 Plaintiff argues that Hartford abused its discretion by not disclosing video 3 recordings gathered by third-party private investigators in 2018 and 2021. Plaintiff argues 4 that Hartford abused its discretion by not providing the 2021 surveillance videos to their 5 medical reviewers and wrongfully withholding the information. (Doc. 29 at 18–19.) ERISA 6 regulations require that on the appeal of an adverse determination, the administrator shall 7 provide the claimant, “upon request and free of charge, reasonable access to, and copies 8 of, all documents, records, and other information relevant to the claimant’s claim for 9 benefits.” 29 C.F.R. § 2560.503-1(h)(iii). Relevant information includes a document, 10 record, or other information which “[w]as submitted, considered, or generated in the course 11 of making the benefit determination, without regard to whether such document, record, or 12 other information was relied upon in making the determination.” Id. § 2560.503- 13 1(m)(8)(ii). 14 The surveillance from 2018 is not relevant because it occurred years before the 15 current investigation. See id. § 2560.503-1(m)(8); (Doc. 29 at 18). However, the result of 16 the August 2021 surveillance was seemingly generated during the course of the current 17 benefit determination, and therefore, it is relevant under the regulations. If Wallace 18 requested the record, Hartford would have abused its discretion by not supplying the record 19 to him. However, the only support in the record evidencing the 2021 surveillance is an 20 invoice dated August 18, 2021. (Doc. 25-11 at 5.) There is no report in the record associated 21 with that surveillance. Further, there is no request for production of that report by Wallace 22 in the record, nor does Plaintiff argue that he so requested it. Plaintiff cites no caselaw or 23 statute which requires Hartford to produce a surveillance report to medical reviewers when 24 other objective medical evidence is available. See Hertz, 991 F. Supp. 2d at 1141 (finding 25 Hartford abused its discretion by relying on surveillance video instead of conducting an 26 IME as requested by the participant). 27 Accordingly, the Court finds that Hartford did not abuse its discretion or act with 28 bias by not providing the video footage to the medical reviewers. 1 i. Bias of Hartford’s Medical Experts 2 Plaintiff argues that Hartford abused its discretion by failing to prevent bias in its 3 determination. (Doc. 29 at 19–21.) First, Plaintiff alleges that the Defendant hired a biased 4 doctor, Dr. McCrary, to conduct the IME. (Id. at 19.) Plaintiff points to the fact that Dr. 5 McCrary did not have any records for the two years prior to the IME. (Id.) As discussed 6 above, Plaintiff did not supply Hartford with any medical records for the two years 7 preceding the IME. Next, Plaintiff asserts that Hartford did not meaningfully respond to 8 his hired observer, retired anesthesiologist Gretchen Van Maren’s, critique of Dr. 9 McCrary’s IME. (Id.) Hartford did respond, by stating Van Maren’s report was an “attempt 10 to discredit any valid medical opinion which doesn’t align with your position rather than 11 argue merits of the specific current medical evidence.” (Doc. 25-4 at 131.) Plaintiff does 12 not explain why he hired a doctor to attack Hartford’s medical evidence, rather than to 13 perform unbiased testing to produce contradictory medical evidence which would support 14 his position. 15 Next, Plaintiff argues that because the testimonies of Drs. McCrary and Tsandis 16 were previously rejected in a different case, this Court should also be required to reject 17 their testimonies. (Doc. 29 at 20 (citing Brown v. Life Ins. Co. of N. Am., No. CV-16-00162- 18 TUC-JAS, 2018 WL 748288 (D. Ariz. Jan. 19, 2018)).) In Brown, the court rejected the 19 testimonies of all of the privately hired doctors in that case because it found the records 20 and testimony of the participant’s doctors more credible, and because the private doctors 21 were being compensated by the insurance company. 2018 WL 748288, at *3. Here, it is 22 Wallace’s burden to produce evidence of a financial conflict sufficient to warrant a degree 23 of skepticism. Demer, 835 F.3d at 902. As evidence, Wallace submits two unsworn 24 statements from attorneys, including the attorney currently representing him in this case, 25 to show that Dr. McCrary has acted with bias in the past. (Doc. 25-7 at 96, 108.) Plaintiff 26 further contends that Hartford refused to provide a history of using Dr. McCrary. (Doc. 29 27 at 20.) Plaintiff points to his requests for production of such documents, not to evidence 28 that Hartford refused to supply them. (Doc. 25-6 at 71; Doc. 25-10 at 58.) Further, Plaintiff 1 alleges Dr. Tsandis only finds a claimant able to work. (Doc. 29 at 20.) To support this 2 assertion, Plaintiff relies on an unsworn letter that his attorney wrote in 2019 during 3 Wallace’s previous appeal. (Doc. 25-7 at 131–34.) 4 As Plaintiff is unable to provide specific evidence of the frequency of reviews or 5 any significant dollar amount earned by Dr. McCrary or Dr. Tsandis, Plaintiff is unable to 6 show that Hartford abused its discretion. Demer, 835 F.3d at 903. However, “such lack of 7 evidence does not mean there is no conflict of interest.” Id. Because the outside doctors 8 retained by Hartford may have financial incentive to produce results in favor of Hartford, 9 an increased level of skepticism is required when reviewing their determinations in this 10 case. Id. at 904. 11 Next Plaintiff argues that Dr. Tsandis and Hartford bullied him when he attempted 12 to submit an altered authorization. (Doc. 29 at 20.) Plaintiff does not cite any caselaw or 13 statute to show that he is entitled to submit an altered authorization, or that Hartford 14 otherwise abused its discretion by stating it would not accept the altered authorization. 15 Plaintiff also does not cite to the record where the alleged “bullying” occurred. 16 Finally, Plaintiff alleges that Hartford’s determination process was biased when the 17 doctors in the final tri-morbid review misrepresented the opinions of Dr. Marsh. (Id.) 18 Plaintiff does not specifically detail what those misrepresentations were but directs the 19 Court to Dr. Marsh’s response to the report dated September 13, 2022. (Doc. 25-6 at 69– 20 73.) This report also does not specifically describe any misrepresentations, other than the 21 assumption that Dr. Marsh was no longer treating Wallace, likely because Hartford had not 22 been supplied with any medical record produced by Dr. Marsh since 2019. 23 Accordingly, the evidence of Hartford’s bias does not directly convince the Court 24 that Hartford abused its discretion, but such bias should be taken into account when 25 heightening the skepticism applied to Hartford due to its inherent conflict of interest, and 26 the Court will adjust its deference accordingly. Salomaa, 642 F.3d at 674–75. 27 // 28 // 1 C. Hartford Did Not Abuse its Discretion When Terminating Benefits for Lack of Proof Provided. 2 The Court finds that Hartford did not abuse its discretion in terminating Wallace’s 3 LTD benefits under the terms of the Plan. Under the abuse of discretion standard, an 4 administrator’s interpretation of the Plan will not be disturbed if reasonable. Conkright v. 5 559 U.S. at 521. To find that an administrator abused its discretion, its decision must be 6 either: “(1) illogical, (2) implausible, or (3) without support in inferences that may be 7 drawn from the facts in the record.” Salomaa, 642 F.3d at 676. Hartford’s structural conflict 8 of interest requires the Court to apply a higher degree of skepticism to Hartford’s decision 9 to terminate. See id. However, for the reasons discussed above, the Court will give the 10 conflict of interest factor only “minimal weight” in this case. See Stephan, 697 F.3d at 929. 11 “In all abuse-of-discretion review, whether or not an administrator’s conflict of interest is 12 a factor, a reviewing court should consider all the circumstances before it . . . in assessing 13 a denial of benefits under an ERISA plan.” Pac. Shores Hosp., 764 F.3d at 1042 (quoting 14 Abatie, 458 F.3d at 968) (cleaned up). 15 The Plan unambiguously requires Wallace to furnish the proof of loss necessary for 16 Hartford to establish that he is disabled on a continuing basis. (Doc. 26-11 at 9.) Further, 17 the Plan dictates that the failure to provide these materials to Hartford is grounds for the 18 termination of benefits. (Id.) Hartford’s stated reason for terminating Plaintiff’s LTD 19 benefits, in its 16-page final determination letter dated October 27, 2022, is that “based on 20 the weight of the medical, vocational and overall claim evidence; we find that your client 21 does not meet the Any Occupation definition of Disability.” (Doc. 25-5 at 4.) The October 22 27, 2022 letter goes on to outline the shortcomings of Plaintiff’s evidence in great detail, 23 as well as his failure to provide requested materials on multiple occasions. (Doc. 25-4 at 24 121–33; Doc. 25-5 at 2–4.) 25 Hartford’s independent reviewers attempted on multiple occasions to communicate 26 with Wallace’s medical professionals for comment or further information, but these 27 requests were often ignored. (Doc. 25–5 at 55, 60–64, 74, 79, 81–82, 89–98; Doc. 25-8 at 28 110.) When Wallace’s benefits were terminated, Hartford gave Wallace an opportunity to 1 supply additional updated materials for review upon appeal, and Wallace did. (Doc. 25-4 2 at 122.) However, Wallace consistently relied on conclusory opinion letters from lay- 3 persons and Drs. Marsh and Tecaya as proof of his disability and did not submit any further 4 medical evidence or additional testing. (See id.) As such, it appears from the record that 5 Hartford gave the Plaintiff every opportunity to submit additional evidence, clarify 6 ambiguous materials, or otherwise explain discrepancies in the record. In other words, 7 Hartford necessarily endeavored to give the Plaintiff a full and fair review of his disability 8 and engage in “meaningful dialogue” between parties. See Mooton v. Lockheed Med. Ben. 9 Plan, 110 F.3d 1461, 1463 (9th Cir. 1997). 10 Nothing in the record shows that Hartford’s decision was “(1) illogical, (2) 11 implausible, or (3) without support in inferences that may be drawn from the facts in the 12 record.” See Salomaa, 642 F.3d at 676. When Hartford found evidence to be lacking, it 13 logically asked Plaintiff for clarification or additional materials. When Plaintiff failed to 14 provide materials that adequately proved his disability, Hartford hired no less than five 15 outside vendors to produce independent reports or undertake additional examinations of 16 Wallace. As discussed above, Hartford’s determination under the “Any Occupation” 17 standard was not implausible. Plaintiff consistently failed to argue the correct standard and 18 offered no evidence that the R&Ls prescribed to him were inconsistent with the position 19 of mining engineer at companies other than Freeport, relying instead on generalized 20 objections to perceived requirements of the occupation not contained in the EAR. Finally, 21 Plaintiffs have failed to show that Hartford’s determination was not supported by 22 inferences in the record and have ultimately failed to show that Wallace’s condition is 23 inconsistent with his R&Ls or that those R&Ls are inconsistent with the occupation of 24 mining engineer. Plaintiff points to his adjudication of disabled for the purposes of SSDI 25 as proof he is entitled to LTD benefits under the Plan. However, Plaintiff ignores that those 26 separate determinations are governed by different legal standards, that the ALJ’s findings 27 without an age-related adjustment are reasonably consistent with R&Ls proscribed to him 28 by Hartford’s investigation, and that he failed to supply Hartford with the underlying medical reports relied on by the ALJ. Accordingly, Plaintiff has failed to show that 2|| Hartford abused its discretion in terminating his LTD benefits. V. Conclusion 4 For the foregoing reasons, the Court concludes Hartford’s conflict of interest did 5|| not improperly motivate its decision to terminate Wallace’s benefits, and Hartford did not 6 || otherwise abuse its discretion in terminating Wallace’s LTD benefits. 7 Accordingly, 8 IT IS ORDERED: 9 1. Plaintiff's Motion for Summary Judgment (Doc. 29) is denied. 10 2. Defendant’s Motion for Summary Judgment (Doc. 28) is granted. The Clerk 11 || of Court shall enter judgment accordingly and close this case. 12 Dated this 28th day of March, 2025. 13 i facmot_ Jopp 15 Jennifer G. Zh ps 16 Chiet United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

- 26 -