Opinion
Case No. CV 19-5227 FMO (JEMx)
2020-09-30
Sandra TAM, Plaintiff, v. FIRST UNUM LIFE INSURANCE COMPANY, Defendant.
Alan E. Kassan, Glenn R. Kantor, Kantor and Kantor LLP, Northridge, CA, for Plaintiff. Nicole Y. Blohm, Meserve Mumper and Hughes LLP, Kristin Kyle De Bautista, Meserve Mumper and Hughes LLP, Los Angeles, CA, for Defendant.
Alan E. Kassan, Glenn R. Kantor, Kantor and Kantor LLP, Northridge, CA, for Plaintiff.
Nicole Y. Blohm, Meserve Mumper and Hughes LLP, Kristin Kyle De Bautista, Meserve Mumper and Hughes LLP, Los Angeles, CA, for Defendant.
ORDER RE: CROSS MOTIONS FOR JUDGMENT
Fernando M. Olguin, United States District Judge
This is an action to recover benefits under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001, et seq. Plaintiff Sandra Tam ("plaintiff" or "Tam") asserts a single cause of action pursuant to 29 U.S.C. § 1132(a)(1)(B) against defendant First Unum Life Insurance Company ("Unum"), for improper denial of long-term disability ("LTD") benefits under the employee benefit plan established by MUFG Union Bank, N.A. (the "Plan"). (See Dkt. 1, Complaint at ¶¶ 1-3, 7-18). Plaintiff seeks payment of disability benefits under the Plan, declaratory relief, attorney's fees and costs, and pre-judgment and post-judgment interest. (See id. at p. 6). This Order comprises the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52(a).
To the extent that any conclusions of law are inadvertently labeled as findings of fact (or vice versa), the findings and conclusions shall be considered "in [their] true light, regardless of the label that the ... court may have placed on [them]." Tri-Tron Int'l v. Velto, 525 F.2d 435, 435 (9th Cir. 1975).
Having reviewed and considered the briefing filed with respect to the parties' Cross-Motions for Judgment, the court finds that oral argument is not necessary to resolve the Motions, see Fed. R. Civ. P. 78(b) ; Local Rule 7-15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and concludes as follows.
FINDINGS OF FACT
MUFG Union Bank, N.A. ("Union Bank"), plaintiff's employer, maintains the subject Plan for the benefit of its eligible employees. (See Administrative Record ("AR") at 66-67 & 69). "The Plan is funded by insurance issued by [Unum.]" (Id. at 102). Contributions to the plan are made by Union Bank. (See id. at 69-70 & 102). Plaintiff is approximately 45 years of age. (See id. at 515). She is married and has two children, approximately 11 and 9 years of age. (See id. ). Plaintiff started working at Union Bank in January 2001, and most recently worked as a Senior Systems Engineer. (Id. at 585). In that role, plaintiff's responsibilities included "programming, development, detailed analysis, on call production support (usually production problems happen during the middle of the night), [and] troubleshooting issues[.]" (Id. ).
I. THE LONG-TERM DISABILITY PLAN.
The Plan provides that a claimant may recover LTD benefits if she is "continuously disabled throughout her elimination period." (AR at 82). The "elimination period" is "the later of ... 180 days; or the date [the claimant's] Short Term Disability payments end, if applicable." (Id. ). Plaintiff received Short Term Disability payments through April 17, 2018, (see Dkt. 27-2, Declaration of Sandra Tam in Support of Plaintiff's Motion for Judgment ("Tam Decl."), Exh. A, April 18, 2018, Letter from Sedgwick to Tam ("Sedgwick Letter")); therefore, the elimination period for plaintiff ended on April 17, 2018. (See AR at 82).
Under the Plan, a claimant is disabled when she is "limited from performing the material and substantial duties of [her] regular occupation due to [her] sickness or injury; and [she has] a 20% or more loss in [her] indexed monthly earnings due to the same sickness or injury." (AR at 82). The Plain defines "limited" as what a claimant "cannot or [is] unable to do." (Id. at 98). "After 24 months of payments, [a claimant is] disabled when Unum determines that due to the same sickness or injury, [she is] unable to perform the duties of any gainful occupation for which [the claimant is] reasonably fitted by education, training or experience." (Id. at 82). "Gainful occupation" means "an occupation that is or can be expected to provide [the claimant] with an income within 12 months of [the claimant's] return to work, that exceeds: 80% of [the claimant's] indexed monthly earnings, if [the claimant is] working; or 60% of [the claimant's] indexed monthly earnings, if [the claimant is] not working." (Id. at 97).
II. PLAINTIFF'S MEDICAL CONDITION AND SHORT-TERM DISABILITY FINDING.
Plaintiff's last day of work was June 14, 2017. (See AR at 12). On June 4, 2017, plaintiff's infectious disease specialist, Dr. John Chia, M.D. ("Dr. Chia") completed a form certifying her disability. (See id. at 43-44). Dr. Chia diagnosed plaintiff with chronic fatigue syndrome ("CFS"), chronic enterovirus infection, cognitive dysfunction, and diffuse paresthesia. (See id. at 43). In diagnosing plaintiff's medical conditions, Dr. Chia noted an elevated Coxsackie virus B3 antibody, pharyngitis, tender cervical lymphadenopathy, slow mentation, abdominal tenderness, erythematous rashes and diffuse muscle tenderness. (See id. ). According to Dr. Chia, plaintiff was diagnosed with these conditions on October 7, 2016, eight months prior to leaving her job. (See id. ).
"Paresthesia" is "an abnormal touch sensation, such as burning, prickling, or formication, often in the absence of an external stimulus." Dorland's Illustrated Medical Dictionary (29th ed. 2000).
"Pharyngitis" is "inflammation of the pharynx[,]" also known as sore throat. Dorland's Illustrated Medical Dictionary.
"Lymphadenopathy" is "disease of the lymph nodes." Dorland's Illustrated Medical Dictionary. Plaintiff describes "tender cervical lymphadenophathy" as "inflamed lymph nodes." (Dkt. 27-1, Joint Brief Re: Cross Motions for Judgment Under Rule 52 ("Joint Br.") at 6).
"Mentation" means "mental activity." Dorland's Illustrated Medical Dictionary.
On August 17, 2017, plaintiff had another appointment with Dr. Chia, who again noted an enterovirus infection, chronic superficial gastritis without bleeding, vesicular rash, and chronic fatigue. (See AR at 326). With respect to chronic fatigue, Dr. Chia stated that, "despite stopping work, the patient remained very fatigued and not able to do much during the day." (Id. ). "Patient spending some time with her children during the summer but she had to lie down often even after very minor physical activity." (Id. ). Finally, Dr. Chia noted that Tam "still has cognitive dysfunction." (Id. ).
"Gastritis" is "inflammation of the stomach." Dorland's Illustrated Medical Dictionary.
Plaintiff saw Dr. Chia again on September 14, 2017. (See AR at 330). He prescribed Viread, an "antiviral drug used for HIV and hepatitis B" as a potential treatment for her chronic fatigue. (Id. at 330 & 333). Dr. Chia noted that plaintiff had very irritating skin rashes, was "[s]till very fatigued," and felt as though she had a "heavy weight on her body[.]" (Id. at 331). Plaintiff would feel better in the morning, but would then feel worse after a simple activity. (See id. ). She had difficulty concentrating, and had to ask her children to repeat things to her. (See id. ).
Plaintiff had another appointment with Dr. Chia on December 13, 2017. (See AR at 335). With respect to her chronic fatigue, Dr. Chia wrote that the medication made plaintiff "[o]nly minimally better" and that she is "still not functional." (Id. ). He wrote, "[s]he still has significant cognitive dysfunction and cannot do the complex work she did before ... her physical disability." (Id. ). Dr. Chia also included plaintiff's description of her current condition, noting that she still struggled with fatigue but her rashes were improving. (See id. at 336). On a good day, plaintiff would drop her children off at school, go to the grocery store, and then back home to lie down; she would also, on occasion, be able to pick her children up from school. (See id. ). Dr. Chia noted plaintiff's medications, which included Benadryl, Equilibrant, Zoloft, Lorazepam, Adderall, Cromolyn, Cyproheptadine, Viread, Lyrica, Lamivudine, and Naltrexone. (See id. at 337-38).
On April 18, 2018, Sedgwick, Union Bank's short-term disability ("STD") plan administrator, approved plaintiff's STD claim. (See Dkt. 27-2, Tam Decl., Exh. A, Sedgwick Letter). Plaintiff received STD payments from June 22, 2017, through April 17, 2018. (See id. ). As part of the process relating to plaintiff's application for STD benefits, Sedgwick referred her for an independent psychiatric evaluation with Dr. Arthur Smukler, M.D. ("Dr. Smukler"). (See AR at 58-61). Dr. Smukler examined plaintiff on October 11, 2017, and diagnosed her with "[m]ajor depression secondary to enterovirus infection unspecified and chronic fatigue syndrome." (Id. at 60). He elaborated: "As stated before, this is a claimant who has been severely physically ill, and because of the chronicity of her physical impairment, she has become severely depressed and is seeing a psychiatrist and a therapist." (Id. ). Dr. Smukler explained that the medical evidence demonstrates that plaintiff is unable to do her job. (See id. ). According to Dr. Smukler, Tam was "severely impaired," and "[t]hroughout the interview, she was tearful and at times she was openly sobbing." (Id. ). "She [was] depressed and very anxious[,]" and told Dr. Smukler that she has had suicidal thoughts. (Id. ). Dr. Smukler noted plaintiff's current medications, which included anti-viral medications, Zoloft, Lorazepam, Adderall, and Risperdal. (See id. at 58-59). He concluded that Tam's ability to [r]eturn[ ] to work will be fully dependent on the findings of John Chia, M.D., infectious disease expert." (Id. ).
Plaintiff states that although the Sedgwick Letter "states [she] received STD benefits through April 17, 2018, [her] understanding was that all benefits paid after [her] 6-month entitlement for STD were related to California State Disability/Voluntary Plan benefits (SDI/VP), which benefits are also managed by Sedgwick." (Dkt. 27-2, Tam Decl. at ¶ 2).
III. PLAINTIFF'S APPLICATION FOR LONG-TERM DISABILITY BENEFITS.
Plaintiff applied for LTD benefits in November 2017. (See AR at 127). On November 14, 2017, plaintiff had an initial phone interview with Unum Disability Benefits Specialist Laura Pitcher ("Pitcher") to discuss her claim. (See id. at 136). In her notes from the call with plaintiff, Pitcher wrote that Tam did not want behavioral health conditions considered as part of her LTD claim "as she feels they are not disabling." (Id. at 137). Plaintiff asked Pitcher to take the behavioral health medications off the list of medications she was taking. (See id. ). Pitcher told Tam she would keep the medications on the list, but would note that plaintiff felt that her behavioral conditions were not disabling. (See id. ). Pitcher explained to plaintiff that Unum looks "at the whole person" when evaluating a LTD claim and wanted "to make sure [they] have all" conditions and healthcare providers. (Id. ). When asked who her healthcare providers were, plaintiff told Pitcher only about Dr. Chia. (See id. at 138).
As for her conditions and symptoms, plaintiff told Pitcher that she had fatigue, difficulty focusing, abdominal pain, and pain in the skin which she "feels ... all over[,]" including on her face, neck, chest, and hands. (AR at 138). When asked about activities in which she was able to participate, plaintiff said her condition is "annoying," but does not keep her from activities such as housework, yardwork, and childcare. (Id. at 138-39). Plaintiff told Pitcher that she drives her children to and from school and extracurricular activities, but housework is challenging, and she relies on her mother for help. (See id. at 139). In a follow-up call the next day, plaintiff elaborated on her fatigue, noting that she often naps during the day and feels groggy in between naps. (See id. at 142). Plaintiff said her fatigue was getting progressively worse and that she never feels rested. (See id. ).
On November 30, 2017, Pitcher spoke again with plaintiff by phone. (See AR at 255). Tam confirmed that Dr. Chia was the only healthcare provider she would disclose in her benefits application. (See id. ). Pitcher stated that Unum "need[s] all information from all providers in order to accurately review [plaintiff's] claim[,]" and that the information Unum received from Dr. Chia may not be sufficient to support her long-term disability claim. (Id. ).
On January 23, 2018, Unum determined that it needed to clarify whether plaintiff's mental health symptoms, for which she was receiving treatment and medication, were affecting her perception of her physical symptoms. (See AR at 344-45). On the same day, a Vocational Rehabilitation Technician ("VRT"), Katherine Rolph ("Rolph"), conducted an occupational analysis and found that plaintiff's "occupation in the national economy [was] most consistent" with that of a Software Engineer. (Id. at 349). Rolph concluded that the physical demands of the occupation included mostly sitting with some standing and walking for brief periods of time, lifting, carrying, pushing, pulling up to ten pounds of force occasionally, constant keyboard use, and frequent reaching and handling. (See id. at 350). From a cognitive perspective, plaintiff's position was a skilled occupation that required concentration, attention, making judgments and decisions, and dealing with people. (See id. ).
On February 2, 2018, Dr. Peter Kouros, D.O., a specialist in occupational medicine, and an Unum on-site physician, sent Dr. Chia a letter seeking to "gain a better understanding of [his] medical opinion." (AR at 360). According to Dr. Kouros, "[o]n review of [plaintiff's] clinical information, there appeared to be an absence of correlating findings or studies that substantiate the reported fatigue." (Id. ). He also said that "there is a lack of evaluations consistent with cognitive dysfunction" and that "[r]ecent office notes reflect overall improvement." (Id. ). Dr. Kouros concluded that "it is clinically unclear if [plaintiff] has been continuously precluded from performing her occupational demands[.]" (Id. ). Dr. Chia responded on February 7, 2018, noting that plaintiff was unable to perform her occupational demands on a full-time basis within six months of discontinuing work, explaining that "the patient has not responded to immune booster/antiviral drugs," even though "she has had mild improvement, probably due to rest[.]" (Id. at 365).
On February 13, 2018, Pitcher notified Tam that Unum received additional information from Dr. Chia, and asked her if she would like Unum to "look at any additional information from other" healthcare providers. (AR at 373). Plaintiff told Pitcher that Unum should only consider information from Dr. Chia in evaluating her claim. (See id. ).
On February 15, 2018, Dr. Kouros, who never examined plaintiff and had no experience in Myalgic Encephalomyelitis ("ME"), CFS, or enterovirus infections, concluded that the available medical evidence did not support plaintiff's inability to fulfill her job duties for a period of longer than six months. (See AR at 380). Dr. Kouros based his opinion on the following: (1) the "lack of information in the medical records that the reported prescription medications have produced impairing side effects"; (2) plaintiff's "other conditions including gastritis are not associated with [restrictions and limitations and do not] rise to a level of impairment"; (3) a lack of physical examination findings that comport with the reported fatigue; (4) generally "unremarkable" lab results; (5) improvement in symptoms reflected by notes from doctor visits; (6) the lack of escalating care or medications consistent with the level of reported fatigue; (7) the absence of clinical assessments or other documentation that correlates with any level of cognitive impairment; and (8) "[w]hile there could be psychiatric issues affecting the insured's functional capacity, there is an absence of [behavioral health] records to review and" plaintiff has denied permission to review such records. (Id. ).
According to the Centers for Disease Control ("CDC"), Myalgic Encephalomyelitis is "a disabling and complex illness" that causes "overwhelming fatigue that is not improved by rest." Symptoms "can include problems with sleep, thinking and concentrating, pain, and dizziness." "What is ME/CFS?", Centers for Disease Control, https://www.cdc.gov/me-cfs/about/index.html (last visited Sept. 29, 2020).
On February 16, 2018, Unum had Designated Medical Officer, Dr. James Bress, M.D., (internal medicine) review plaintiff's medical records. (See AR at 383-84). Dr. Bress also did not examine plaintiff or have any experience in ME/CFS or enterovirus infections. (See, generally id. ). He agreed with Dr. Kouros' conclusion that the medical evidence did not support plaintiff's claim. (See id. at 383). Noting that plaintiff had "chronic fatigue ... [,] anxiety and depression[,]" (id. ), Dr. Bress said "[t]here is no evidence of an immune deficiency by any lab testing[,]" and "[t]here is no evidence of a chronic viral infection causing her symptoms." (Id. at 384). Dr. Bress did "not find support for any established co-existing diagnoses or medication side effects rising to a level of impairment warranting any restrictions or limitations." (Id. ).
On February 20, 2018, psychiatrist Dr. Nicholas Kletti, an Unum on-site physician, reviewed plaintiff's claim. (See AR at 391-93). Dr. Kletti – who also did not examine plaintiff – noted plaintiff's history of mental health treatment, which included prescriptions for psychotropic medications since at least December 2015. (See id. at 392). He also noted that plaintiff had been treated by a psychiatrist since at least March 2017, and reported intermittent treatment with a psychotherapist. (See id. ). Dr. Kletti stated that plaintiff's "symptom complaints, particularly fatigue and cognitive dysfunction, are common in psychiatric illness." (Id. ). According to Dr. Kletti, plaintiff's infectious disease specialist, Dr. Chia, "made no mention of any psychiatric concerns, conditions or impairment." (Id. ). However, Dr. Kletti's statement is incorrect because Dr. Chia's records include psychiatric observations. (See, e.g., id. at 327-28) (noting both "depression: yes" and "psychiatric: normal" for plaintiff). Finally, Dr. Kletti disagreed with the opinion provided by the independent medical examiner selected by Union Bank's short-term disability provider. Dr. Kletti stated that Dr. Smukler was "clearly not certifying impairment on the basis of psychiatric illness, e.g. noting that claimant ‘is unable to fulfill the requirements of her job because of her physical illness’ and that ‘returning to work will be fully dependent on the findings of John Chia, M.D.’ " (Id. ). Dr. Kletti concluded that "[g]iven the lack of impairment certification by any provider or evaluator on the basis of mental illness, [he was] unable to support that [plaintiff] has been psychiatrically impaired precluding ability to perform usual occupational duties at any time during this claim." (Id. at 392-93).
Although the record does not indicate why, Unum retained another psychiatrist, Designated Medical Officer, Dr. Stuart Shipko, to review plaintiff's claim from a psychiatric perspective. (See AR at 397-99). Dr. Shipko – the fourth doctor to review plaintiff's medical records in connection with her LTD claim – also did not examine plaintiff. Even though Tam was not seeking disability on the basis of psychological impairments, Dr. Shipko, like Dr. Kletti, concluded that the available evidence did not support plaintiff's psychiatric restrictions and limitations. (See id. at 398). Dr. Shipko noted that Dr. Chia's notes indicate that plaintiff is depressed, but "mental status evaluations are normal and assessments do not include assessment of any psychiatric condition." (Id. ). Dr. Shipko continued, "I would expect that if the claimant had impairing psychiatric illness, Dr. Chia would have noted tearfulness during examination or other findings of depression." (Id. ). Dr. Shipko also reviewed Dr. Smukler's records and found the information in his records was ambiguous, "largely indicating support for impairment based on physical symptoms." (Id. ). Dr. Shipko noted that Dr. Smukler did not assess plaintiff for cognition nor did he report cognitive impairment. (See id. ). Dr. Shipko concluded that Dr. Smukler's view that plaintiff was psychiatrically impaired was "inconsistent with the examiner's lack of description of specific psychiatric impairment and identification of specific physical impairment." (Id. ). Dr. Shipko recommended no further medical investigation. (See id. ).
On February 28, 2018, Unum sent plaintiff a letter informing her that Unum would "not be able to approve the payment of" long-term disability. (AR at 404). The letter explained the reasoning underlying Unum's decision, citing information set forth in the preceding paragraphs of this Order. (See id. at 404-06).
IV. PLAINTIFF'S APPEAL.
On November 30, 2018, plaintiff appealed Unum's denial of long-term benefits. (See AR at 485). Along with her appeal, plaintiff enclosed the following documents: (1) a Cardiopulmonary Exercise Test ("CPET") Evaluation Report, dated November 6, 2018, ("CPET Report"); (2) a Comprehensive Neuropsychological Evaluation Report, dated November 19, 2018, ("Neuropsychological Evaluation"); (3) a letter from Dr. Chia, dated October 22, 2018; (4) updated medical records from plaintiff's healthcare providers; and (5) declarations from plaintiff, Dick Tam – plaintiff's husband, and plaintiff's friend, Min Ji Clark. (See id. at 485-86). The CPET Report found that plaintiff "demonstrates cardiopulmonary anomalies, low function and delayed recovery with severe symptom exacerbation post-exertion." (Id. at 493). The Neuropsychological Evaluation noted that plaintiff had "significant dementia at a mild level" with "result[s] correspond[ing] to [those] found in patients in the early stage of Alzheimer's disease." (Id. at 516). The Neuropsychological Evaluation also found that "[q]ualitative results were highly indicative of severe neuropsychological impairment." (Id. at 517).
Plaintiff submitted a letter from Dr. Chia as well as additional medicals records from Dr. Chia indicating that plaintiff's chronic fatigue had worsened over time. (See AR at 519-39). Dr. Chia's letter described plaintiff's medical condition, explaining that after plaintiff went on disability in June 2017, "her condition actually worsened over the next year." (Id. at 519). She "was barely able to do her activit[ies] of daily living." (Id. ). "She had to rest after any simple activity, and often ha[d] to lie down after taking a shower." (Id. ). According to Dr. Chia, plaintiff's "cognitive dysfunction worsened and she was not able to remember things her children told her and certainly could not perform multi-task function[s] that [were] required of her job." (Id. ). Plaintiff also submitted records from her treatment in 2017 and 2018 with Dr. Anthony Chen, in which Dr. Chen noted that plaintiff had chronic depression and anxiety, along with fatigue and difficulty concentrating "due to infection and not from depressed mood." (See id. at 546, 553, 559, 564 & 569).
Finally, plaintiff also submitted a declaration, as well as the declarations of Dick Tam and Min Ji Clark in support of her appeal. (See AR at 585-93). In her declaration, plaintiff explained that she "started feeling tingling and pain in [her] skin and nerves, sometimes with or without rash/bumps." (Id. at 585). She stated that "[t]he pain continued to get worse and spread to larger areas on [her] body[,]" and it felt "like [her] skin/body is on fire." (Id. ). Plaintiff also described her chronic fatigue and cognitive difficulties. (See id. at 585-86). Min Ji Clark, Tam's friend, described the change in plaintiff's behavior. (See id. at 592-93). She explained that plaintiff is now "a shadow of the person she used to be" because "[h]er stamina has been severely impacted, and she can no longer participate in excursions or outings that were part of the norm before." (Id. ).
Instead of sending Tam for a medical examination or at least retaining a doctor with experience in ME/CFS or enterovirus infections, Unum sent plaintiff's claim, including the voluminous additional medical evidence on appeal, to its on-site physician, Dr. Scott Norris, M.D. (family/occupational/aerospace medicine). (See AR at 691-95). Dr. Norris – the fifth Unum doctor to review plaintiff's medical records without examining plaintiff – concluded that the available evidence did not support plaintiff's restrictions and limitations. (See id. at 692). He stated that plaintiff's medical exams during the period of June 15, 2017, through December 11, 2017, were normal or had mild findings that were not consistent with ongoing impairment. (See id. ). According to Dr. Norris, Dr. Chia's treatment of plaintiff was "not standard" because she was given antiviral medication when "[t]here are no antiviral medications approved for treatment of enterovirus infection." (Id. ). Dr. Norris noted plaintiff's unwillingness to submit records from her behavioral health providers, and noted that her behavioral health medications during the relevant time period "remained stable and/or decreased in intensity[.]" (Id. ). In his view, the "[c]linical records did not support a significant change or decrement in overall functional capacity[.]" (Id. ). Finally, Dr. Norris dismissed the CPET Report and Neuropsychological Evaluation as "not time-relevant[.]" (Id. ).
On May 7, 2019, Unum notified plaintiff that it had denied her appeal and determined that she was "able to perform the duties of her regular occupation." (AR at 1356).
V. DECISION OF THE SOCIAL SECURITY ADMINISTRATION.
As part of the briefing before this court, plaintiff submitted the finding of disability made by the Social Security Administration ("SSA") as further probative evidence of plaintiff's disability. (See Dkt. 27-2, Declaration of Plaintiff Sandra Tam in Support of Plaintiff's Motion for Judgment [ ] ("Tam Decl."), Exh. C, Letter from the SSA ("SSA Letter") at 1). According to the SSA, plaintiff became disabled on June 15, 2017. (See id. ). Although the SSA Letter does not set forth the medical evidence upon which the SSA relied in reaching its determination, (see, generally, id. ), plaintiff submitted a declaration stating that she "provided the [SSA] with the exact same medical documentation from Dr. John Chia that [she] supplied to Unum to support [her] claim for Long Term Disability[.]" (Dkt. 29-1, Declaration of Sandra Tam in Support of Plaintiff's Opposition to Defendant's Motion to Strike Extrinsic Evidence [ ] ("Tam Decl. Re: Mot. to Strike") at ¶ 2).
STANDARD OF REVIEW
The court reviews challenges to an ERISA plan's denial of benefits de novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). When review is de novo, "the court does not give deference to the claim administrator's decision, but rather determines in the first instance if the claimant has adequately established that he or she is disabled under the terms of the plan." Muniz v. Amec Constr. Mgmt. Inc., 623 F.3d 1290, 1295-96 (9th Cir. 2010) ; see Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc ) (when a court reviews the denial of benefits de novo, the court "simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits").
A claimant challenging a plan administrator's decision bears the burden of proving entitlement to benefits by a preponderance of the evidence. See Shaw v. Life Ins. Co. of N. Am., 144 F.Supp.3d 1114, 1123 (C.D. Cal. 2015) ; Muniz, 623 F.3d at 1294 ("As concluded by other circuit courts which have addressed the question, when the court reviews a plan administrator's decision under the de novo standard of review, the burden of proof is placed on the claimant."). In a trial on the record, the court "can evaluate the persuasiveness of conflicting testimony and decide which is more likely true." Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) ; see Schramm v. CNA Fin. Corp. Insured Grp. Benefits Program, 718 F.Supp.2d 1151, 1162 (N.D. Cal. 2010) (noting that, in reviewing the administrative record, "the Court evaluates the persuasiveness of each party's case, which necessarily entails making reasonable inferences where appropriate").
CONCLUSIONS OF LAW
"[B]y default, review of denial of ERISA benefits is de novo, and ... to obtain the more lenient abuse of discretion standard of review, a plan must unambiguously so provide." Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 673 (9th Cir. 2011). The parties agree that the proper standard of review in this case is de novo. (See Dkt. 27-1, Joint Br. at 3).
I. PLAINTIFF'S REGULAR OCCUPATION.
Plaintiff's "regular occupation" was as a Senior Software Engineer at Union Bank. (AR at 585). Unum's Vocational Rehabilitation Technician conducted an occupational analysis pursuant to which she determined that plaintiff's regular occupation included minimal physical demands, but was highly demanding from a cognitive perspective. (See id. at 350). Indeed, plaintiff's regular occupation was a skilled occupation that required concentration, attention, making judgments and decisions, and dealing with people. (See id. ).
II. PLAINTIFF'S MEDICAL CONDITION.
Prior to the onset of her medical difficulties, plaintiff balanced full-time work with the responsibilities of motherhood. (See AR at 585). Plaintiff's husband testified that she was dedicated to her job, regularly working late into the night. (See id. at 589) ("Often times after she would work a full day, she would log back into work after the kids went to bed to work at night sometimes working until 2 AM or later."). On top of her professional responsibilities, plaintiff took "care of [her] kids, cook[ed], clean[ed], and ma[de] time for friends." (Id. at 585).
Unfortunately, everything changed with the onset of plaintiff's various medical conditions. (See AR at 585-86). Not only could plaintiff no longer work, she also could no longer care of her children without assistance. (See id. at 586). Basic activities resulted in extreme fatigue. (See id. at 586-88). Plaintiff slept throughout the day, despite getting a full night's sleep. (See id. at 587-88). Plaintiff's symptoms included "tingling, nerve pain, burning pains, [and] joint pain[.]" (Id. at 586). Her "cognitive skills [were] compromised" such that she had a "hard time focusing" and often had to have family members tell her things twice because she could not remember what they said. (Id. at 586).
Plaintiff was diagnosed with the following conditions: CFS, cognitive dysfunction, chronic enterovirus infection, rashes, diffuse paresthesia, major depression, and anxiety. (See AR at 43, 60, 326, 521, 546 & 552). On June 4, 2017, Dr. Chia certified plaintiff's disability claim, concluding that, based on plaintiff's CFS, she could not work, even on a part-time basis. (See AR at 43-44). He noted that plaintiff "[s]till has cognitive dysfunction" and remained very fatigued despite no longer working. (Id. at 326). Believing that plaintiff's CFS was related to an enterovirus infection, Dr. Chia prescribed antiviral medications, which did not ultimately improve plaintiff's condition. (See id. at 330 & 335). Dr. Chia concluded that plaintiff continued to suffer from CFS, which had actually gotten worse over time. (See id. at 521).
On October 11, 2017, Dr. Smukler, an independent medical examiner retained by one of Union Bank's disability providers, conducted a psychiatric examination of plaintiff in connection with her application for STD benefits. (See AR at 58-61). He diagnosed her with "[m]ajor depression secondary to enterovirus infection unspecified and chronic fatigue syndrome." (Id. at 60). Dr. Smukler noted that plaintiff's "limitations [were] severe" and that she was "chronically fatigued and tired and at times cannot even function on a minimal basis at home." (Id. at 59). According to Dr. Smukler, plaintiff "is depressed, anxious, tearful, and has difficulty concentrating and remembering things." (Id. ). Dr. Smukler also noted that plaintiff was "seeing a psychiatrist, Dr. Rochowski, and has been seeing him twice a month for six months," and had been seeing a therapist for two months. (Id. at 59). Dr. Smukler concluded that the medical evidence indicated that plaintiff was "unable to do [her] job requirements[.]" (Id. at 60). Finally, plaintiff saw Dr. Chen several times in 2017, and he consistently concluded that she had depression and anxiety. (See id. at 546, 553, 559, 564 & 569).
In addition to Dr. Smukler, who was retained by Union Bank's STD provider, Sedgwick, Union Bank's LTD provider, Unum, retained five doctors to review plaintiff's LTD disability claim. Unlike Dr. Smukler, the five doctors did not examine plaintiff, but simply reviewed her medical records – four prior to Unum's initial decision on long-term disability and one on appeal. The five doctors all disagreed with plaintiff's doctors and two of them even disagreed with Dr. Smukler. (See AR 378-81, 383-84, 391-93, 398-99, 691-95). Drs. Kletti and Shipko focused on the psychiatric aspect of plaintiff's conditions, (see id. at 391-93 & 398-99), even though plaintiff was not claiming disability on that basis. Unlike Drs. Kletti and Shipko, the paper review conducted by Drs. Kouros and Bress focused on the physical aspects of plaintiff's medical condition. (See AR at 380 & 383-84). In concluding that the evidence was not sufficient to support a finding of disability, these doctors largely pointed to a lack of objective medical evidence. (See id. ). For instance, Dr. Kouros cited a lack of physical examination findings that comport with the reported fatigue and the absence of clinical assessments or other documentation that correlates with any level of cognitive impairment. (See id. at 380). Dr. Bress focused on the enterovirus infection, explaining his conclusion in part by citing the lack of "evidence of an immune deficiency by lab testing" and asserting "[t]here is no evidence of a chronic viral infection causing her symptoms." (Id. at 384). Finally, Dr. Norris, who reviewed plaintiff's claim on appeal, (see id. at 691-95), pointed to "normal" physical examination findings and his assessment that "[c]ognitive deficits were not identified on routine examinations during the" elimination period. (Id. at 692).
As noted earlier, Dr. Smukler concluded that plaintiff's medical condition prevented her from performing her job. (See AR at 60) ("[Q:] Does OME (objective medical evidence) presented support that employee is unable to do their job requirements[?] [A:] Yes.").
Viewing the record in its totality, the court finds that plaintiff has met her burden of proving entitlement to benefits under the Plan. First, Unum erred in relying on the opinions of five doctors who did not examine plaintiff and had no experience or a specialization in the area of ME/CFS or infectious disease over the opinions of the doctors who examined plaintiff. (See, generally, AR at 378-81, 383-84, 391-93, 398-99 & 691-95). While an ERISA plan administrator need not provide in-person medical evaluations of its claimants, the court finds that Drs. Chia's, Smukler's, and Chen's in-person evaluations and observations are more persuasive than the paper review conducted by Unum's five doctors. See Salomaa, 642 F.3d at 676 (finding medical opinions rendered following in-person examination more persuasive than contrary opinions from an administrator's paper-only review); Oldoerp v. Wells Fargo & Co. Long Term Disability Plan, 12 F.Supp.3d 1237, 1254 (N.D. Cal. 2014) ("While an ERISA plan administrator need not provide in-person medical evaluations of its claimants, Simonelic's in-person observations are more persuasive than Goldman's paper review."); Bunger v. Unum Life Ins. Co. of Am., 299 F.Supp.3d 1145, 1160 (W.D. Wash. 2018) (stating that the plaintiff's "claim also finds support in the evidence from every doctor who personally examined him"); Nagy v. Grp. Long Term Disability Plan for Employees of Oracle Am., Inc., 183 F.Supp.3d 1015, 1031 (N.D. Cal. 2016) ("As an initial matter, none of [the insurer's] four medical examiners personally examined [plaintiff]; instead, each of the examiners based his or her conclusions upon a review of [plaintiff's] medical records and, if available, phone discussions with [plaintiff's] treating physicians. Accordingly, their reports lack the level of credibility normally attributed to physicians who have personally observed a patient.").
In addition, the paper-reviews conducted by Unum's physicians mischaracterized and/or ignored evidence in the record. See, e.g., Lundquist v. Cont'l Cas. Co., 394 F.Supp.2d 1230, 1251-52 (C.D. Cal. 2005) (reversing denial of disability benefits where the defendants "unreasonably discounted the opinions of" physicians and ignored evidence). For instance, Dr. Kletti noted that although plaintiff was being treated by a psychiatrist, Dr. Chia "has made no mention of any psychiatric concerns, conditions or impairment." (AR at 392). On the contrary, Dr. Chia's notes indicate that plaintiff was suffering from depression. (See id. at 327). Similarly, Dr. Shipko stated that if plaintiff had really been as depressed as Dr. Smukler thought, then "Dr. Chia would have noted tearfulness during examination of other findings of depression." (Id. at 398). Again, contrary to Dr. Shipko's statement, Dr. Chia's notes did indicate that she is depressed. (See, e.g., id. at 327). Moreover, it is not particularly surprising or telling that Dr. Chia, who is not a psychiatrist, but an infectious disease specialist, did not focus on mental health issues as part of his treatment of plaintiff. As one would expect, Dr. Chia's records focus on plaintiff's physical health, but do note mental health indicators or concerns. (See id. ).
Further, in explaining their finding that plaintiff is not disabled, Unum's doctors point to a lack of objective evidence to support plaintiff's medical condition. (See, e.g., AR at 380 & 692). CFS was just one of plaintiff's diagnoses, but the record indicates that it was the focal point for plaintiff's doctors and Unum's reviewers. (See id. at 43, 60, 326, 360, 380, 521, 546 & 552). However, "[t]here is no blood test or other objective laboratory test for chronic fatigue syndrome." Salomaa, 642 F.3d at 676. Thus, Unum's doctors' focus on the lack of objective evidence was improper because CFS is not established through objective evidence. See Orzechowski v. Boeing Co. Non-Union Long-Term Disability Plan, Plan No. 625, 856 F.3d 686, 696 (9th Cir. 2017) ("But as we have previously acknowledged, [CFS is] not established through objective tests or evidence."); Salomaa, 642 F.3d at 678 ("We now establish as holding what was then dicta, that conditioning an award on the existence of evidence that cannot exist is arbitrary and capricious."); Nagy, 183 F.Supp.3d at 1031 ("Moreover, Dr. McCrary, Dr. Mobo, Dr. Welbel, and Dr. Sullivan all justified their findings of no disability at least in part on a lack of objective evidence confirming [plaintiff's] condition. Yet, as the Court has emphasized, no blood tests or objective laboratory tests exist for CFS.").
Unum's physicians also point to plaintiff's refusal at various points during the process to provide evidence of her mental condition, (see, e.g., AR at 380, 392-93), but, as noted earlier, plaintiff was not seeking disability on the basis of a mental condition. Even assuming plaintiff was seeking disability based on a mental impairment, there was evidence in the record, which UNUM ignored, acknowledging, for example, the relationship between CFS and depression and anxiety. (See, e.g., id. at 392) (Dr. Kletti stating that plaintiff's "symptom complaints, particularly fatigue and cognitive dysfunction, are common in psychiatric illness.").
Unum's insistence that a claimant provide objective medical evidence of a medical condition characterized by subjective complaints of fatigue and pain is the same basis upon which it challenges the CPET Report and Neuropsychological Evaluation that plaintiff's counsel submitted in her appeal. (See Dkt. 27-1, Joint Br. at 48-49). Putting aside the fact that there is no objective test for CFS, see Orzechowski, 856 F.3d at 696, the fact that the CPET Report and Neuropsychological Evaluation rely on the patient's description of her condition and the pain that she may be experiencing does not invalidate or undermine the tests. Unum has not put forward any basis to challenge or otherwise undermine Tam's credibility; nor could it since it did not even bother to have one of its five doctors examine her.
Unum also objects to the CPET Report and Neuropsychological Evaluation because, as Dr. Norris stated, the exams are "not time-relevant[.]" (AR at 692); (see Dkt. 27-1, Joint Br. at 47-48). However, "[i]t is obvious that medical reports are inevitably rendered retrospectively and should not be disregarded solely on that basis." Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) ; see Du v. Comm'r of Soc. Sec. Admin., 2018 WL 4719004, *4 (C.D. Cal. 2018) (same).
In the context of a condition, such as plaintiff's, characterized by disabling pain and fatigue, a physician invariably relies on a patient's descriptions of his or her condition and other types of subjective information in making a diagnosis and in assessing a patient's limitations. See, e.g., Salomaa, 642 F.3d at 678 (reversing administrator's denial of benefits for employee disabled by chronic fatigue syndrome, which was based on treating physician's reliance of employee's self-reports of exhaustion). However, Unum's implicit contention that objective medical evidence is necessary in every instance of a claimed disability would mean that an employee with a condition such as CFS, fibromyalgia, migraines, or a mental health impairment would never qualify for disability benefits because there is often no objective medical evidence to confirm those conditions. See, e.g., Orzechowski, 856 F.3d at 696 ; Jordan v. Northrop Grumman Corp. Welfare Plan, 370 F.3d 869, 872 (9th Cir. 2004), overruled on other grounds, Abatie, 458 F.3d at 970 ("[F]ibromyalgia's cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia.") (footnote omitted); Sanchez v. Apfel, 85 F.Supp.2d 986, 992 (C.D. Cal. 2000) ("Courts have recognized that a psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as is a medical impairment and that consequently, the diagnostic techniques employed in the field of psychiatry may be somewhat less tangible than those in the field of medicine. In general, mental disorders cannot be ascertained and verified as are most physical illnesses, for the mind cannot be probed by mechanical devices in order to obtain objective manifestations of mental illness.... [W]hen mental illness is the basis of a disability claim, clinical and laboratory data may consist of the diagnosis and observations of professionals trained in the field of psycholpathology. The report of a psychiatrist should not be rejected simply because of the relative imprecision of the psychiatric methodology or the absence of substantial documentation, unless there are other reasons to question the diagnostic technique.") (alterations in original); Hua v. Astrue, 2009 WL 524991, *4 nn. 2 & 4 (D. Colo. 2009) ("[W]hile laboratory tests cannot prove the existence of migraine headaches, there are medical signs which should be viewed as ‘objective evidence,’ " such as "nausea, photophobia, dizzy spells" and "impaired sleep[.]"). As the Ninth Circuit has noted, "individual reactions to pain are subjective and not easily determined by reference to objective measurements." Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 872 (9th Cir. 2008) ; see Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989) ("[P]ain is a completely subjective phenomenon" and "cannot be objectively verified or measured."). In short, the court is persuaded that, under the circumstances here, the CPET Report and Neuropsychological Report are valid and credible measures of plaintiff's medical condition.
"While the rules and presumptions of [the Ninth Circuit's] Social Security case law do not apply to ERISA benefits determinations, [the Ninth Circuit's] Social Security precedents are relevant for the factual observation that disabling pain cannot always be measured objectively – which is true for ERISA beneficiaries as it is for Social Security claimants." Saffon, 522 F.3d at 873 n. 3 (citation omitted).
Finally, the court notes that the SSA's disability determination "buttresses [plaintiff's] showing." Schramm v. CNA Fin. Corp. Insured Grp. Ben. Prog., 718 F.Supp.2d 1151, 1164-65 (N.D. Cal. 2010). The SSA's disability determination is probative that Tam has been disabled since at least June 15, 2017. (See Dkt. 27-2, Tam Decl., Exh. C, SSA Letter at 1). While the court acknowledges that the standard applied to the SSA's disability determination differs from the applicable standard under the Plan, the court is persuaded that, "notwithstanding this difference, [plaintiff's] entitlement to [SSA disability] benefits suggests that she suffers from some limitation on her ability to work. Again, although this award does not constitute direct proof, it reinforces Plaintiff's showing that she had a disability that could qualify her for benefits under her policy." Schramm, 718 F.Supp.2d at 1165.
"The Court considers Plaintiff's award of [SSA disability] benefits because it constitutes additional evidence that she could not have presented in the administrative process." Schramm, 718 F.Supp.2d at 1165, n. 4 (citing Opeta v. Northwest Airlines Pension Plan, 484 F.3d 1211, 1217 (9th Cir. 2007) ).
The court notes that even without the CPET Report, Neuropsychological Evaluation and the SSA's disability determination, plaintiff met her burden to prove her entitlement to benefits under the Plan. These pieces of information, however, provide supplementary data points that help clarify whether plaintiff qualifies for LTD benefits, thereby assisting the court in the exercise of its informed and independent judgment.
III. ANY GAINFUL OCCUPATION.
Unum asks that if the court concludes that plaintiff is disabled such that she cannot perform the material duties of her regular occupation, the court should nonetheless remand the case to Unum to determine in the first instance whether she cannot perform any gainful occupation. (See Dkt. 27-1, Joint Br. at 50-51). However, in denying benefits and determining that Tam could perform her regular occupation, Unum necessarily determined that she could do other, less demanding jobs. As the Ninth Circuit stated in the Social Security context, "[a]llowing [Unum] to decide the issue again would create an unfair ‘heads we win; tails, let's play again’ system of disability benefits adjudication." Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). Plaintiff has already waited approximately three years for a disability determination. (See AR at 127). "Remanding a disability claim for further proceedings can delay much needed income for claimants who are unable to work and are entitled to benefits, often subjecting them to tremendous financial difficulties while awaiting the outcome of their appeals and proceedings on remand." Benecke, 379 F.3d at 595 (internal quotation marks omitted). In light of the severity of plaintiff's medical condition as reflected in the record, the court is convinced that plaintiff is unable to perform the duties of any gainful occupation.
CONCLUSION
Based on the foregoing, IT IS ORDERED THAT:
1. The parties' Cross Motions for Judgment (Document No. 27) are granted in part and denied in part . Plaintiff's Motion is granted and defendant's motion is denied . Unum's decision denying long-term disability benefits is reversed .
2. No later than three business days from the filing of this Order, plaintiff's counsel shall submit a proposed judgment and email a copy in either Word or WordPerfect (the court's preference) to the courtroom deputy.
3. Counsel for the parties shall meet and confer and propose a briefing schedule for any motion for attorney's fees. The proposed schedule shall be submitted no later than seven (7) calendar days from the filing date of this Order.
4. Defendant's Motion to Strike Extrinsic Evidence (Document No. 34) is denied .