Bostrom v. Prudential Insurance Company of America

Motion for Summary Judgment Pursuant to FRCP 52

D. Or.November 8, 2016

Megan E. Glor, OSB No. 930178 Email: megan@meganglor.com John C. Shaw, OSB No. 065086 Email: john@meganglor.com Megan E. Glor, Attorneys at Law, PC 621 SW Morrison, Suite 900 Portland, OR 97205 Telephone: (503) 223-7400 Facsimile: (503) 227-2530 Attorneys for Plaintiff Keith A. Bostrom UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION Keith A. Bostrom, Plaintiff, Case No. 3:16-cv-00596-YY v. The Prudential Insurance Company of America, Defendant. PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) Oral Argument Requested Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 1 of 36 i TABLE OF CONTENTS LR 7.1 Certification .............................................................................................................1 Question to be Decided ........................................................................................................1 Motion ..................................................................................................................................1 Memorandum of Law I. Mr. Bostrom’s Disability Claim ..............................................................................1 II. Discussion ................................................................................................................3 A. The Applicable Legal Standards ..................................................................3 1. Plaintiff brings his case under § 502(a) of ERISA ..........................3 2. This Court has jurisdiction ...............................................................3 3. The applicable standard of review is de novo ..................................3 i. On de novo review the court does not defer to the prior decision .............................................................4 ii. Review is de novo according to the LTD plan documents ............................................................4 4. The Fed. R. Civ. Pro. 52(a) standard ...............................................6 5. The relevant LTD policy provisions ................................................5 B. Mr. Bostrom Has Proved That He Is Disabled From All Gainful Occupations ..............................................................................8 1. The standard classifications of heart failure and angina .............................................................................9 2. Mr. Bostrom suffers severe, disabling and permanent symptoms resulting from his massive heart attack. ......................................................................10 3. Mr. Bostrom has proved he cannot perform any “gainful occupation” ...............................................................17 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 2 of 36 ii i. Mr. Bostrom’s treating physicians told Prudential repeatedly that Mr. Bostrom is totally and permanently disabled ....................................18 ii. Prudential terminated Mr. Bostrom’s claim anyway .....................................................................21 iii. Mr. Bostrom provided still more proof of his disability in his appeal, but Prudential denied it ............................................................21 iv. Mr. Bostrom’s statements are further evidence of his disability ...................................................26 C. Prudential Erroneously Terminated Mr. Bostrom’s LTD Claim .................................................................................................27 D. Mr. Bostrom Is Entitled To Reinstatement Of His LTD Claim And Benefits To The Date Of Judgment .........................................30 III. Conclusion .............................................................................................................31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 3 of 36 iii TABLE OF AUTHORITIES U.S. Supreme Court Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................................7 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) ..........................................4, 6 U.S. Court of Appeals Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938 (9th Cir. 1995) ..................................................................................................4 Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202 (9th Cir. 2000) .......................................................................................................................5 Sterio v. HM Life, 369 Fed. Appx 801 (9th Cir. 2010) .......................................................30 U.S. District Court James v. AT&T West Disability Benefits Program, 2014 U.S. Dist. LEXIS 75265 (N.D. Cal. June 2, 2014) ...................................................31 Mangnum v. Metro. Life Ins. Co., 2010 U.S. Dist. LEXIS 141550 (D. Or. 2010) ........................................................................................................................6 Petrusich v. Unum Life Ins. Co. of Am., 984 F. Supp. 2d (D. Or. 2013) ...........................30 Roth v. The Prudential Ins. Co. of Am., 752 F.Supp. 2d 1160 (D. Or. 2010) ........................................................................................................................6 Topits v. Life Ins. Co. of No. Am., 2013 U.S. Dist. LEXIS 147856 (D. Or. Apr. 11, 2013) ......................................................................................................4, 6 Toth v. INA Life Insurance Company of New York, 638 F. Supp. 2d 1262 (D. Or. 2009) ..................................................................................31 Federal Statutes 28 U.S.C. § 1391 ..................................................................................................................3 29 U.S.C. § 1001 ..................................................................................................................3 29 U.S.C. § 1002(1) .............................................................................................................3 29 U.S.C. § 1132(a) .............................................................................................................3 29 U.S.C. § 1132(a)(1)(B) ...............................................................................................1, 3 29 U.S.C. § 1132(e)(1) .........................................................................................................3 29 U.S.C. § 1132(e)(2) .........................................................................................................3 29 U.S.C. § 1331 ..................................................................................................................3 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 4 of 36 iv Other LR 7.1(a)(1)(A) ....................................................................................................................1 Fed. R. Civ. Pro. 52(a) .....................................................................................................1, 6 Fed. R. Civ. Pro. 56 .............................................................................................................7 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 5 of 36 LR 7.1 CERTIFICATION Pursuant to LR 7.1(a)(1)(A), the parties have made a good faith effort to resolve the dispute; however, they have been unable to do so. QUESTION TO BE DECIDED Based on the Court’s de novo review, has plaintiff proved by a preponderance of the evidence that Prudential erroneously terminated his long-term disability claim, and must Prudential therefore reinstate his claim and monthly benefit effective March 20, 2015? MOTION Pursuant to Fed. R. Civ. Pro. 52(a) and 29 U.S.C. § 1132(a)(1)(B), plaintiff Keith Bostrom hereby moves for judgment declaring that Prudential erroneously terminated his LTD claim and benefits on March 20, 2015, and ordering Prudential to reinstate his LTD claim and monthly benefit commencing March 20, 2015. Plaintiff relies on the Stipulated Record For Judicial Review (Doc. 16) and plaintiff’s Memorandum of Law. MEMORANDUM OF LAW I. Mr. Bostrom’s Disability Claim Mr. Bostrom, a four-year employee of Frontier Communications employed as a Fiber Network Field Technician (AR 123, 751), suffered a massive heart attack and cardiac arrest on March 17, 2011, at age 44. AR 488. A short-term disability (“STD”) claim was submitted (AR 126-32, 142-44) through the Company’s STD policy, and Prudential approved and paid the claim for the maximum three-month period under the STD policy. AR 145 (showing coverage), 1466. Prudential also approved Mr. Bostrom’s LTD claim, effective September 14, 2011, under the group LTD policy (AR 1478), “through the maximum duration of March 1, 2032.” AR PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 1 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 6 of 36 1502 (8/31/12) (emphasis added). AR 833. Prudential began to pay a monthly LTD benefit of $2,504.73, half of Mr. Bostrom’s monthly earnings. AR 1478. Prudential’s LTD policy contains two disability definitions. For the first 12 months benefits were payable, September 14, 2011 through September 13, 2012 (see AR 1478, 1499), 1 Prudential approved and paid LTD benefits based upon its conclusion that “due to sickness”, Bostrom was “unable to perform the material and substantial duties of [his] regular occupation…and...under the regular care of a doctor.” AR 90; see AR 1478 (Prudential, 9/14/11: “After reviewing your claim for Long Term Disability (LTD) benefits through your employment with Frontier Communications, we have approved your LTD claim.”), AR 1499. Prudential also approved and paid Mr. Bostrom’s claim (for 2½ years) under the policy’s “any gainful occupation” provision, effective September 13, 2012. Id. (Prudential, 8/31/12: “Our review of your file has determined that based on your medical condition, restrictions and limitations and gainful wage, you cannot be gainfully employed and are eligible to continue to receive LTD benefits.”), AR 90 (“any gainful occupation” disability provision). See pp. 7-8, infra (discussing this standard). After paying LTD benefits for 2½ years under the “any gainful occupation” disability provision and despite Mr. Bostrom’s providers’ statements that he could not return to work and was permanently disabled, Prudential terminated his LTD claim and benefits, effective March 20, 2015. AR 1520. Mr. Bostrom appealed, submitting chart notes, provider letters, his own statement and articles pertaining to some of his cardiac conditions and side effects of his 1 The policy provides a 26-week waiting (“Elimination”) period before benefits are due. AR 81. PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 2 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 7 of 36 medications. AR 931-1161; see pp. 21-27, 28-30, infra (discussing appeal). On November 29, 2015, Prudential denied his appeal. AR 1540-46. II. Discussion A. The Applicable Legal Standards. 1. Plaintiff brings his case under § 502(a) of ERISA. ERISA § 502(a), 29 U.S.C. § 1132(a), is the statute that authorizes claimants to bring a civil cause of action challenging an ERISA plan fiduciary’s denial of benefits under an “employee welfare benefit plan” (defined in 29 U.S.C. § 1002(1)): “A civil action may be brought— (1) by a participant or beneficiary— … (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 2. This Court has jurisdiction. This Court has jurisdiction over the parties and the subject matter of this dispute pursuant to ERISA, 29 U.S.C. § 1001 et seq ., which creates federal jurisdiction over benefit claims brought under 29 U.S.C. § 1132(a)(1)(B). See 29 U.S.C. § 1132(e)(1) and (f); 29 U.S.C. § 1331. Venue is proper in this district under 29 U.S.C. § 1132(e)(2) and 28 U.S.C. § 1391. To the extent ERISA mandates pre-suit appeals as a condition of filing suit, Prudential admits Mr. Bostrom has “exhausted his administrative remedies...” Def. Answer (Doc. #10) ¶ 13. 3. The applicable standard of review is de novo. The default standard of review in a claim challenging an ERISA claim administrator’s benefit termination decision –– and the applicable review standard here –– is de novo . / / / / PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 3 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 8 of 36 i. On de novo review the court does not defer to the prior decision. In a judicial review under ERISA, the court typically reviews the policy or plan documents and the “cold record” developed in the claim submission and review process. The 2 plaintiff bears the burden of proving by a preponderance of the evidence that he is disabled according to the policy’s terms. This Court has explained the nature of a de novo review: When conducting a de novo review of the record, 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) . The trial court performs an “independent and thorough inspection” of the plan administrator's decision in order to determine if the plan administrator correctly or incorrectly denied benefits. Silver v. Executive Car Leasing Long-Term Disability Plan, 466 F.3d 727, 733 (9th Cir. 2006) . De novo review permits the trial court to “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) . Topits v. Life Ins. Co. of North America , 2013 U.S. Dist. LEXIS 140226 *5-6, 2013 WL 5524131 (D. Or. Sept. 30, 2013) (emphasis added). ii. Review is de novo according to the LTD plan documents. In Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989), the Supreme Court stated how the applicable standard of review is determined: “A denial of benefits governed by ERISA is given de novo review unless the plan documents--in unambiguous terms--grant discretion to the plan administrator or fiduciary to determine 2 The Ninth Circuit explained the circumstances under which a court may consider additional evidence outside the record in Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan , 46 F.3d 938, 944 (9th Cir. 1995) (The district court should exercise its discretion to consider “evidence that was not before the plan administrator” “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” Id. ) PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 4 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 9 of 36 eligibility for benefits or to interpret the terms of the plan.” Id. The Ninth Circuit holds that “unless plan documents unambiguously say in sum or substance that the Plan Administrator or fiduciary has authority, power, or discretion to determine eligibility or to construe the terms of the Plan, the standard of review will be de novo.” Sandy v. Reliance Standard Life. Ins. Co., 222 F.3d 1202, 1207 (9th Cir. 2000). In addressing the applicable standard of review of Prudential’s decision in this case, four documents require discussion. The first document is entitled “Frontier Communications Corporate Services, Inc. Plan for Group Insurance.” AR 1-49. It lists component benefits provided to Frontier Communications employees through various insurance policies (AR 4), but does not grant to the insurers of these policies discretionary authority in making benefit determinations. The second document is the LTD “Group Contract” (AR 50-76), which incorporates the various documents that comprise the “Group Contract.” AR 57. The list includes, inter alia, the “Group Insurance Certificate(s)” (id .), the third document, which begins at AR 77. Neither of these documents contain a grant of discretion. The fourth document, is entitled Summary Plan Description. AR 112-17. It does contain a discretionary clause. AR 114. However, the “Summary Plan Description” does not form a part of the “Group Insurance Certificate” or “Group Contract” (AR 114), as it is prefaced by the following statement: “The Summary Plan Description is not part of the Group Insurance Certificate.” AR 112. Accordingly, the discretionary clause on AR 114 does not trigger deferential review. PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 5 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 10 of 36 This issue has been argued numerous times, including in this District. See Roth v. The Prudential Ins. Co. of Am ., 752 F. Supp. 2d, 1160, 1167-68 (D. Or. 2010), adopted by, partial summary judgment granted , 2010 U.S. Dist. LEXIS 118847 (D. Or. Nov. 4, 2010) (“There is no evidence in the record that the ERISA Statements, which are not signed, are amendments to the Plan or are, in any other way, incorporated into the Plan.” Id. at 1168 (record citations omitted)) (citing Besser v. Prudential Ins. Co. of Am., 2008 U.S. Dist. LEXIS 116869, *5-6 (D. Hawai’i Sept. 30, 2008) (“At best, the ERISA statement is attached to the Certificate of Coverage… Prudential has not met its burden of demonstrating that the ERISA statement is part of the Certificate of Coverage.”)); see also Mangum v. Metro. Life Ins. Co ., 2010 U.S. Dist. LEXIS 141550, pp. *2-9 (D. Or. Sept. 29, 2010). As to the fourth document (discussed above), The Supreme Court holds that a discretionary clause contained in an SPD, alone, is insufficient to trigger deferential (abuse of discretion) review. Instead, the policy controls. Amara v. Cigna Corp., 563 U.S. 421, 131 S. Ct. 1866, 1878 179 L. Ed. 2d 843 (2011) (“we conclude that the summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan for purposes of §502(a)(1)(B).”) Because Prudential’s LTD policy policy does not contain a provision granting Prudential discretion as described in Firestone Tire, the applicable standard of review in this case is de novo . 4. The Fed. R. Civ. Pro. 52(a) standard. When the de novo standard of review applies in an ERISA benefit case, it is appropriate for the court to review and issue a decision under Rule 52(a). This Court explained in Topits : A trial on the administrative record, which allows a court to make factual findings, evaluate credibility, and weigh evidence, is the appropriate proceeding to resolve the dispute. See Rabbat v. Standard Ins. Co ., 894 F. Supp. 2d 1311, PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 6 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 11 of 36 1314 (D. Or. 2012); see also Casey v. Uddeholm Corp ., 32 F.3d 1094, 1099 (7th Cir. 1994) (on de novo review of an ERISA benefits claim, the “appropriate proceeding[ ] . . . is a bench trial and not the disposition of a summary judgment motion”); Lee v. Kaiser Found. Health Plan Long Term Disability Plan , 812 F. Supp. 2d 1027, 1032 (N.D. Cal. 2011) (“De novo review on ERISA benefits claims is typically conducted as a bench trial under Rule 52.”); but see Orndorf v. Paul Revere Life Ins. Co ., 404 F.3d 510, 517 (1st Cir. 2005) (“When there is no dispute over plan interpretation, the use of summary judgment . . . is proper regardless of whether our review of the ERISA decision maker's decision is de novo or deferential.”). 2013 U.S. Dist. LEXIS 140226 *6-7. Alternatively, if this Court concludes that this case would be more appropriately decided on summary judgment, the following well-known standard applies: Judgment under Fed. R. Civ. P. 56 is appropriate if the moving party shows that there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). 5. The relevant LTD policy provisions. Prudential terminated Mr. Bostrom’s LTD claim in March 2015, after paying his LTD claim for 3½ years, including 2½ under an “any gainful occupation” provision. Prudential concluded that Mr. Bostrom was disabled under this provision because he proved he was “unable to perform the duties of any gainful occupation for which [he is] reasonably fitted by education, training or experience; and” “under the regular care of a doctor.” AR 90 (policy); see AR 1499 (Prudential, 8/31/12: “Our review of your file has determined that based on your medical condition, restrictions and limitations and gainful wage, you cannot be gainfully employed and are eligible to continue to receive LTD benefits.”). Gainful employment means an occupation Mr. Bostrom can perform and “that is or can be expected to provide [him] with an income within PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 7 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 12 of 36 12 months of [his] return to work, that exceeds...50% of [his] monthly earnings” of $5,009.46 per month, i.e. more than $2,504.73. See AR 91 (policy), 1478. B. Mr. Bostrom Has Proved That He Is Disabled From All Gainful Occupations. Mr. Bostrom’s disability is clearly and overwhelmingly proved by the record. This man, who possesses a 10th grade education and who worked as Fiber Optic Network Technician, suffered a massive heart attack and cardiac arrest in March 2011, while fishing. Bystanders initiated CPR and paramedics “shocked and resuscitated” him in the field; he required “multiple shocks” during transport to Willamette Falls Hospital. AR 488. He was transferred by ambulance to Adventist Hospital –– as bad weather prevented airlifting him to OHSU. He had “several vfib arrests (~4) necessitating shocks” during transport. Id. On arrival at Adventist he “had another vfib arrest and recv'd 100 joules of sync DC cardioversion w/brief CPR.” Id. An angiogram revealed several coronary occlusions that restricted blood flow up to 90%; stents were surgically placed. Id. Mr. Bostrom was “transferred to OHSU for worsening cardiogenic shock and ?need for more invasive mechanical circulatory assist.” Id. He entered the Critical Care Unit and remained hospitalized at OHSU for 13 days. AR 531. He suffered complications and other serious medical conditions and has remained under the care of a team of specialists at the OHSU Heart Failure Clinic. Mr. Bostrom has not been able to work since his March 2011 cardiac arrest. Dr. Mudd, his primary cardiologist with the OHSU Heart Failure Clinic, has consistently assessed Stage C, functional Class II-III chronic systolic heart failure and Class II-III chronic angina. These classifications, by definition, indicate significant limitations. See pp. 9-10, infra . Dr. Mudd and Dr. Jill Gelow, also a treating cardiologist with Heart Failure Clinic, have both told Prudential PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 8 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 13 of 36 Bostrom will never work again. So has Dr. Wendy Laborie, Mr. Bostrom’s internist. Dr. Carmelindo Siqueira, a third treating cardiologist, confirms disability and describes significant cognitive symptoms. Bostrom’s therapist, Meghan McLain, PsyD, explains he suffers from major depressive disorder and PTSD, onset after his massive heart attack. Because Mr. Bostrom has proved disability from all gainful occupations he is entitled to reinstatement of his LTD claim. 1. The standard classifications of heart failure and angina. Mr. Bostrom’s primary provider for his heart conditions, Dr. Mudd, has consistently assessed Stage C, functional Class II-III chronic systolic heart failure, and Class III and IV chronic angina. See AR 1209 (9/5/14), 766 (2/19/15), 987 (8/4/15). Appeal exhibits explain in simple terms what these designations mean, functionally. Clinicians “most often use the New York Heart Association Functional Classification System, which is based on the severity of a patient's symptoms” to classify heart failure. AR 1093. Class II and Class III chronic systolic heart failure mean: Class II: Slight limitation of physical activity; comfortable at rest, but ordinary physical activity results in fatigue, palpitation, dyspnea, or angina pain. Class III: Marked limitation of physical activity; comfortable at rest, but less than ordinary activity causes fatigue, palpitation, dyspnea, or anginal pain. Id. (emphasis added). “...patients may shift back and forth between these classes in response to treatment.” Id . (emphasis added). According to the American College of Cardiology/American Heart Association, Stage C chronic systolic heart failure means Mr. Bostrom has “current or past symptoms of heart failure PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 9 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 14 of 36 associated with underlying structural heart disease.” Id. Class C chronic systolic heart failure “includes patients with known structural heart disease and”: • Shortness of breath; • Fatigue [and] reduced exercise tolerance Id. (emphasis added). The Canadian Cardiovascular Society’s Grading System for stable angina describes the functional limitations associated with each classification. Even at Grade III, Mr. Bostrom has “marked limitation of ordinary physical activity” with angina “induced by walking one or two level blocks and climbing one flight of stairs in normal conditions and at a normal pace.” AR 1097; see AR 766, 1209 (assessing Bostrom with chronic angina Grade III-IV). 2. Mr. Bostrom suffers severe, disabling and permanent symptoms resulting from his massive heart attack. After metal stents were urgently placed to open the affected occluded heart arteries at Adventist Hospital on March 17, 2011, an intra-aortic balloon pump (IABP) was also placed. AR 482. Mr. Bostrom was then transferred to OHSU for advanced cardiac treatment. He was taken 3 immediately to the cath lab, and assessed with poor quality cardiac performance. He was transferred to the Critical Care Unit (CCU) on a ventilator. Id. A Portable chest x-ray showed findings of massive aspiration (gastric/stomach contents entering into the lungs), which causing “probable aspiration pneumonia.” AR 482, 529. Dr. Mudd diagnosed, inter alia , cardiogenic shock due to V-Fib arrest from large anterior wall myocardial infarction (MI) (AR 490) and 4 3 A mechanical device that assists the heart in pumping blood to the organs and body See http://www.ems1.com/medical-clinical/articles/1507419-How-a-balloon-pump-helps-the-heart/ (accessed Nov. 4, 2016). 4 This type of heart attack is referred to as a “widow-maker.” See http://myheart.net/articles/ the-widowmaker/ (accessed Nov. 8, 2016) (“When the main artery down the front of the heart (LAD) is totally blocked or has a critical blockage, right at the beginning of the vessel, it is PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 10 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 15 of 36 Acute MI, Killip class IV, ST segment elevation; status post bare metal stents x2 in left anterior descending artery. AR 491. 5 An ultrasound showed function of the left ventricle (“LV”), the largest chamber of the heart that pumps blood to the body, was “severely decreased.” AR 322 (3/17/11). The LV ejection fraction was 25-30% (normal is > 50%), showing Mr. Bostrom’s heart was not pumping blood effectively. Id . On March 18, LV ejection fraction was moderately to severely decreased, at 32.8%. AR 320. A March 23 MRI of the heart revealed segments of nonviable myocardium (heart muscle) and Bostrom had markedly reduced LV function with an ejection fraction of 27% (“LVEF: 27%”). AR 284. The heart attack had resulted in death of heart muscle, which cannot regenerate or improve. At discharge, Mr. Bostrom was diagnosed with, inter alia , coronary artery disease, cardiogenic shock, ventricular fibrillation arrest and congestive heart failure. 6 7 8 AR 413-14. April-June 2011: In the first three months after discharge, Mr. Bostrom was seen by Dr. Mudd four times and underwent coronary artery quadruple bypass surgery on June 11, 2011. known as the Widow Maker. (The medical term for this is a proximal LAD lesion)” (accessed Nov. 4, 2016). 5 The Killip scale is “used to stratify the severity of left ventricular dysfunction and determine clinical status of [patients] post Ml [heart attack].” Class IV indicates the most severe problems. AR 1099. 6 This means the heart is not pumping adequately enough to supply blood to vital organs to the body. See http://www.mayoclinic.org/diseases-conditions/cardiogenic-shock/basics/definition/ con-20034247 (accessed Nov. 4, 2016). 7 An erratic heart rhythm that causes the pumping chambers to quiver instead of pumping blood adequately to the brain and organs. See http://www.heart.org/HEARTORG/Conditions/ Arrhythmia/AboutArrhythmia/Ventricular-Fibrillation_UCM_324063_Article.jsp#.WCHZEeErL ow (accessed Nov. 4, 2016). 8 This occurs when the heart does not pump effectively, and may lead to fluid buildup in the lungs and lower extremities. See http://www.mayoclinic.org/diseases-conditions/heart-failure/ basics/definition/con-20029801 (accessed Nov. 4, 2016). PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 11 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 16 of 36 AR 273-76, 265-68, 259-61, 252-55, 541 (noting “Four vessel CABG 6/27/11”). On April 4, 2011, he reported morning fatigue, loss of energy and dizziness that would improve later in the day, and fatigue at other times. AR 273. Dr. Mudd noted that he expected Mr. Bostrom to have a fair amount of residual dysfunction, even with optimal medical therapy due to the extent of the heart damage. AR 276. Due to persistent shortness of breath and chest pains, Dr. Mudd performed another angiogram and, on June 27, 2011, a 4-vessel coronary bypass with LV reconstruction (removal of a left ventricle aneurysm). AR 541. An echocardiogram showed LV ejection fraction of 30-35%, indicating that his heart was not pumping effectively. AR 254. In August-December 2011, Mr. Bostrom improved, but remained symptomatic and disabled. AR 247-48. An August 2011 echocardiogram showed severely decreased LV function, with an ejection fraction of 25-30% and RV function moderately reduced. AR 286. By early August, he could walk and talk and had less shortness of breath. AR 247. Dr. Mudd noted that the heart failure was “slowly improving”, with “ongoing dyspnea (shortness of breath) with exertion.” AR 248. He was to begin cardiac rehabilitation. AR 247. He had been treated for minor infections at graft sites on his legs. AR 247. On September 9, 2011, Dr. Mudd diagnosed “Ischemic cardiomyopathy stage C class II-III heart failure”. AR 242. After echocardiogram, he noted that cardiac function would have to improve before an internal defibrillator (“ICD”) (which would shock the heart in the event of another sudden cardiac arrest) could be placed. Id. By October 20, 2011 Mr. Bostrom was feeling much better than he had been prior to bypass surgery and was making slow progress but had “lightheadedness with exercise at times.” AR 544. However, Dr. Mudd noted that given the extent of heart disease and large infarct (heart muscle death), he anticipated advanced therapies at a later date. AR 546. A Cardiac PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 12 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 17 of 36 Rehabilitation discharge summary showed Mr. Bostrom had attended phase II cardiac rehab from August to December 22, 2011 with 100% compliance. AR 556. His weight had increased 17.5 pounds. Id . His exercise tolerance had improved by 115%. Id . A December 2011 9 echocardiogram showed mildly increased LV cavity size with moderately decreased function, but improved since the prior study (25%, AR 286). The LV ejection fraction was 35-40%. AR 551. In early 2012, Mr. Bostrom reported dizziness, lightheadedness, and “near-fainting” episodes after cardiac rehabilitation sessions. AR 540. Chest pain with exertion had significantly improved with Isosorbide Mononitrate. Id . In March, Mr. Bostrom reported chest pain, 10 palpitations, shortness of breath, headaches, lightheadedness, difficulty sleeping, difficulty with concentration, and right wrist pain. AR 770-71. His heart failure remained at stage C class II-III. AR 541. He saw vascular surgeons for the wrist pain. AR 780-82, 813-17. Imaging showed occlusion of the right radial artery (AR 814 and he was referred to a hand surgeon who diagnosed tendinitis and referred him to occupational therapy. AR 798-99, 812-13, 823-27, 1279-82. In June 2012, he was also seen for left elbow pain, which had developed over the prior 18 months. AR 917-22. This was diagnosed as bursitis. AR 799. Mr. Bostrom attended PT (AR 923-24), but the elbow pain continued. AR 797-98. In August 2012, Mr. Bostrom was seen routinely by, family practice physician, Dr. Mark Dunn. AR 913. He had been working hard on exercise. AR 914. Also in August, Prudential 9 A 17.5-pound weight increase in a patient with heart failure may be an indication of fluid accumulation and increasing heart failure. See http://www.heartfailurematters.org/en_ GB/Warning-signs/Rapid-weight-gain (accessed Nov. 2, 2016) (“It is very common for people with heart failure to experience rapid changes in their weight. If your heart failure is causing fluid accumulation, you will gain weight.”) 10This is a long-acting, extended release nitrate for chest pain. AR 1127. PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 13 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 18 of 36 confirmed its approval of his LTD claim under the now-applicable “any gainful occupation” disability provision. AR 1499. In mid-November 2013, Mr. Bostrom saw by Dr. Laborie, distraught over his SSDI disability hearing, which had not gone well. AR 1198; see AR 1163-65. He reported feeling 11 cognitively changed since the heart attack and unable to function properly, with energy loss and loss of the will to continue cardiac rehabilitation. Dr. Laborie diagnosed depression and situational stress. AR. 1198. Mr. Bostrom reported to Dr. Mudd the following day that he had been “feeling bad since June,” and had chest pressure. AR 1213. He would exercise for about 10 minutes, then would have to stop and rest for 10 minutes before continuing. AR 1214 (11/13/13). Sleep and mood were poor and he had more depressive symptoms. Id . Dr. Mudd diagnosed ischemic cardiomyopathy Stage C, functional Class II, and noted that the disability process had impacted Mr. Bostrom’s quality of life and mood and that his chest pain was stable because he is limiting his activity and no longer exercising. AR 1216. In mid-February 2014, when Mr. Bostrom saw cardiologist Dr. Jill Gelow, Dr. Mudd’s colleague in the Heart Failure Clinic, he felt worse, with chest pain, both with exertion and while at rest, shortness of breath and fatigue. AR 1217, 1219. A March 2014 repeat echocardiogram showed a moderately decreased LV function of 35-40%. AR 1234. In May 2014, Mr. Bostrom reported lightheadedness, cough, irregular palpitations, edema to the back of the knees, tingling in the hands, insomnia, lack of energy and concentration. AR 1202. He was unable to walk/move more than five minutes before limiting fatigue and chest pain would set in and had intermittent palpitations and developed chest pain when under stress. 11 Mr. Bostrom had developed chest pain during the hearing and had to take a nitroglycerin. AR 1214. PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 14 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 19 of 36 Id. He was stressed and depressed. Id. Dr. Laborie diagnosed congestive heart failure, depression, and ADD. AR 1205. He also reported his chest pain to Dr. Mudd. AR 1294 (05/20/14). He reported shortness of breath that would improve but never go away and that “[a]fter days when can walk a bit more he feels wiped out later in the day.” Id . Dr. Mudd noted, “for example just going to the store for his routine shopping he will feel poorly later in the day...sometimes last[ing] into the following day.” Id . He reported that after going to the store he would feel poorly later in the day and sometimes into the following day. Mr. Bostrom also had poor sleep with awakening due to anxiety, depression, intermittent palpitations and cognitive problems, exacerbated by stress and fatigue. Id . Dr. Mudd noted functional class III symptoms despite an ejection fraction of 35-40% and class III angina. AR 1225. The same persistent symptoms continued into September 2014, when Mr. Bostrom saw Dr. Chien. AR 1297-1300 (9/22/14). Basic activities “made him exhausted for the rest of the day.” AR 1297. Dr. Chien recommended mental health treatment for anxiety and PTSD with a goal of finding therapies to improve quality of life. AR 1300; see also AR 760 (Dr. Laborie, 10/28/14: feeling down, more irritable, not sleeping, more nightmares, had stopped exercising, seeing a counselor, overall struggling with adjusting to new life with limited severely limited activity due to heart disease); AR 868-71 (Dr. Chien, 12/8/14: Sleep and morning anxiety improved with antidepressant for depression/PTSD; some erratic chest pain and exertional chest pain, able to grocery shop at a slow pace; encouraged to increase activity to 15 minutes on the treadmill, using medication for angina). In 2015, Mr. Bostrom’s chronic, disabling symptoms continued. In January, an antidepressant was helping with sleep but he was not exercising for fear of angina. AR 865 PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 15 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 20 of 36 (1/28/15, Dr. Shapiro). In mid-February 2015, Dr. Mudd confirmed Mr. Bostrom’s continuing disability in a statement to Prudential. AR 766; see pp. 21-22, infra . In early March 2015, Bostrom reported to Dr. Gelow inability to sleep “more than 4 to 6 hours per night and constantly fatigued.” AR 861. He could only perform one task a day, such as cleaning the bathroom or grocery shopping and the last grocery trip had left him with chest discomfort. Id . He had shortness of breath with exertion, occasional lightheadedness and palpitations. Id . Dr. Gelow considered returning Mr. Bostrom to cardiac rehab and encouraged him to increase activity with daily walks. AR 864. In April, 2015, he was seen again for wrist pain. AR 908-909, 902. Electrodiagnostic studies revealed very mild right carpal tunnel syndrome. AR 903-06 (4/16/15). In late July 2015, Dr. Laborie noted that Mr. Bostrom was under unbearable stress as his disability claim had been denied. AR 892. He had stopped eating and had an unintentional weight loss of 20 pounds. Fatigue was severe. Id . Dr. Laborie further increased his antidepressant dose and reinforced the importance of starting and using a CPAP. AR 896. On August 25, 2015, Mr. Bostrom established care with Dr. Siqueira, in order to have a cardiologist close to his home who would be familiar with his condition. AR 106. Dr. Siqueira documented concentration difficulty, poor sleep, chest pain, palpitations, and shortness of breath. Id . He diagnosed, inter alia , 1) Heart failure, chronic, systolic and diastolic (blood backs up in the right side of the heart and left side of the heart is not properly pumping out the blood to the body), 2) Coronary atherosclerosis of native artery (plaque in a coronary artery), 3) Old large ventricular apical myocardial infarction complicated by ventricular fibrillation cardiac arrest, 4) Cardiogenic shock, and development of left ventricular apical aneurysm (cardiac arrest, death of PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 16 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 21 of 36 heart muscle, and post arrest complications), 5) Dyslipidemia (elevated blood lipids), 6) Recurrent angina pectoris (ongoing chest pain) and 7) Neurocognitive dysfunction . AR 1065. Further, as discussed on pages 21-25, in August and September 2015, Dr. Mudd, Dr. Laborie, Dr. McLain, Dr. Siqueira issued emphatic letters supporting Mr. Bostrom’s disability. AR 987 (Dr. Mudd 8/4/15), AR 755 (Dr. Laborie 9/7/15), AR 1274 (Dr. Gelow 9/30/15), AR 754 (Dr. McLain 8/24/15), AR 1067-73 (Dr. Siqueira ); see also , pp. 28-29, infra . Thus, three years after his cardiac arrest, Mr. Bostrom continued to have chest pain that is at times exertional but also occurred at rest, occasional lightheadedness, dizziness, palpitations intermittently, occasional swelling of the left leg/back of knee, and difficulty with concentration and memory. He continued to have functional class III symptoms despite an ejection fraction of 35-40% on repeat echocardiogram, plus class II-IV angina. He was on a maximum dose of lipid lowering therapy and was not a candidate for apheresis, which would mechanically remove lipids from his circulating blood. Finally, by the fall of 2015, he was suffering left arm pain due to degenerative changes in the cervical spine with severe stenosis and flattening of the spinal cord that caused him severe back and left arm pain. AR 1392-93, 1388; see discussion infra p. 29. 3. Mr. Bostrom has proved he cannot perform any “gainful occupation.” Mr. Bostrom’s providers supported disability beginning March 2011. Dr. Mudd explained on a Prudential form in April 2011 that Mr. Bostrom was “not able to return to work for at least 3 months initially” and that any return to work would “[d]epend[] on his progress and functional status.” AR 144 (4/20/11). Dr. Mudd reiterated support of Mr. Bostrom’s LTD claim by letter dated August 30, 2012 (AR 829-30), in response to a Prudential questionnaire. AR PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 17 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 22 of 36 1491-92. Asked if he agreed Mr. Bostrom could safely return to an occupation in which he was sitting most of the time with brief periods of standing or walking with occasional lifting up to10 pounds,” Dr. Mudd wrote, “Yes, but he would be unable to do this more than 10-20 hrs a week.” AR 829. He stated Bostrom could not work full-time and was at “MMI” (maximum medical improvement). AR 829-30. According to this heart failure expert, who had treated Mr. Bostrom since the cardiac arrest, this was as good as it was going to get. Prudential informed Mr. Bostrom by letter dated August 31, 2012 once 12 months of LTD benefits had been paid (i.e., as of 9/15/12), he was required to meet an “any gainful occupation” standard of disability, i.e, showing he cannot “be employed earning at least 50% of [his] pre-disability salary” (AR 1499), i.e., $2,504.73 per month. AR 1478; see AR 123 (showing plaintiff’s wage). Prudential confirmed that Mr. Bostrom met this test: “Our review of your file has determined...you cannot be gainfully employed and are eligible to continue to receive LTD benefits.” Id. Indeed, Prudential informed Bostrom’s employer, the plan sponsor, that Bostrom’s LTD claim was approved “through the maximum duration of March 1, 2032.” AR 1502 (8/31/12) (emphasis added). Prudential knew Mr. Bostrom would never work again. i. Mr. Bostrom’s treating physicians told Prudential, repeatedly, that Mr. Bostrom is totally and permanently disabled. Bostrom’s internist, Dr. Laborie, wrote on Prudential’s APS form in mid-July 2014 (AR 1194-96) that Mr. Bostrom had “chronic” and “severe shortness of breath with any exertion.” AR 1195. She stated his “Medical Restrictions” (activities he should not perform) as “no exertion” and stated that he was “permanently disabled.” AR 1195 (emphasis added). Asked a “Return to Work Plan,” she simply wrote: “Disabled.” Id . Asked the “Medical Obstacles to Return to Work”, she noted: “Heart Failure Stage C, symptoms of fatigue/SOB [shortness of PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 18 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 23 of 36 breath] with minimal activity.” AR 1196 (emphasis added). Her statements supporting disability were unequivocal. Dr. Mudd confirmed disability on an APS form in early September 2014. AR 1210; see AR 1208-10. He stated Bostrom’s primary diagnosis as “[p]remature coronary artery disease” and noted secondary diagnoses of “chronic systolic heart failure” and “killip IV anterior stem [with]overlapping bare metal stents.” AR 1208. He stated the nature of his medical impairment as: “Chronic systolic Heart Failure with Class III symptoms. He also has chronic stable angina class III-IV.” AR 1209. Dr. Mudd noted: “Can do no more than ADLs currently due to hrt functional limitations.” Id . Dr. Mudd confirmed that Mr. Bostrom will never recover, and will decline: This is a progressive condition and will only worsen and not improve as he is on maximal medical therapy. Id. (emphasis added) (“Prognosis for return to function”). He reiterated that the disability was permanent when asked for a “Return to Work Plan.” He wrote: “Unable to work due to chronic heart failure and angina.” Id. (emphasis added). Accordingly, Dr. Mudd did not state a return to work “Target Date.” Id. Dr. Laborie’s chart note of October 28, 2014 confirmed that Mr. Bostrom was “struggling to adjust to new life whereby activity is severely limited by heart disease.” AR 760. He was “[n]ot sleeping and having more nightmares,” and unable to exercise due to chest pain. Id. He was seeing a counselor regularly. Id. PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 19 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 24 of 36 Dr. Mudd was next asked for his opinion in early 2015, when a Prudential consultant (who never spoke with or examined Mr. Bostrom), Dr. Bellinger, contacted him. AR 766. 12 Bellinger asserted that according to medical records, “Mr. Bostrom has the majority of symptoms of shortness of breath and chest pain during activity” and asked: “Would he be able to perform a sedentary (very little activity) job?” and “If not, what kinds of symptoms would prevent him from performing essentially a ‘desk job’?” Id . Dr. Bellinger’s approach is troubling, particularly for a self-described “Independent Peer Reviewer.” Id. Phrasing his question with the phrase “sedentary (very little activity) job” maximized the chance Dr. Mudd would respond yes, that Bostrom could perform a sedentary job. The material question –– which Dr. Bellinger did not ask –– would accurately be: In your professional opinion, does Mr. Bostrom have the physical, cognitive and psychological capacity to perform a sedentary occupation (one that would pay at least $2,504.73 per month/$30,000 per year), maintaining full-time work hours and not missing more than 1-2 days per month, and remaining on task all day, every day? Dr. Bellinger knew the answer and did not ask. His failure to address the required income threshold was particularly significant given that Bostrom suffered cognitive problems. Yet even when presented with Dr. Bellinger’s biased question, Dr. Mudd again confirmed Mr. Bostrom remained disabled. In response, he stated Bostrom could not “perform a sedentary (very little activity) job” because “[h]e still has rest angina at times that can be debilitating for him and his mental wellness.” AR 766 (2/19/15) (emphasis added). Dr. Mudd 12 The fact Dr. Bellinger broadly serves the disability insurance industry is revealed by his template letter to Dr. Mudd. Bellinger asserted that he had “ been asked to contact you on behalf of The Hartford in regard to the above referenced patient.” AR 766 (emphasis added). PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 20 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 25 of 36 identified the symptoms preventing Bostrom from performing “essentially a ‘desk job’” (as Bellinger put it) as “Chronic Angina Class III-IV.” Id ; see p. 10, supra (the classes of angina). ii. Prudential terminated Mr. Bostrom’s claim anyway. Despite these unequivocal statements confirming disability by the treating physicians, Prudential terminated Mr. Bostrom’s LTD claim and monthly benefit on March 20, 2015 (AR 1520-27), leaving him with no income stream. Relying on Dr. Bellinger’s $1,875 letter that 13 selectively stated facts set forth in medical records and drew cursory conclusions (AR 1316-26), Prudential asserted that Mr. Bostrom was “capable of sustaining work at a sedentary physical demand level.” AR 1526. iii. Mr. Bostrom provided still more proof of his disability in his appeal, but Prudential denied it. Mr. Bostrom engaged counsel and appealed in September 2015, providing still more conclusive proof of his total and permanent disability. AR 931-1161. His appeal contained 15 exhibits, including updated chart notes from the Heart Failure Clinic (Dr. Mudd and Dr. Gelow), Dr. Laborie and cardiologist Dr. Siqueira, and narrative reports by his three treating cardiologists, internist and psychologist, Dr. McLain. AR 987, 1011, 1013-15. In his August 4, 2015 letter, Dr. Mudd explained that as a result of Mr. Bostrom’s “sudden cardiac death due to ventricular fibrillation”, “coronary artery bypass” surgery and slow recovery, “[h]e has been left with persistent left ventricular dysfunction with an ejection fraction 13 Six months earlier, Bostrom had described to Prudential Allsup’s utter failure to advocate for him at his SSDI hearing in the face of a hostile judge. AR 712-21. Prudential had referred Mr. Bostrom to Allsup, touting the company as “an organization of former Social Security Claims Personnel” and assuring him its services were “designed to relieve you of [the] burden” of “dealing with the Social Security Administration.” AR 691. Prudential not only failed to investigate, according to the record, but within weeks ordered a $600 investigation of Bostrom, including an “activity check/database and social media search.” AR 743 (10/16/14), 1255-78. PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 21 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 26 of 36 of 35-40%, class II-III chronic systolic heart failure and class III chronic angina.” AR 987. Dr. Mudd stated: Chronic systolic heart failure and angina are syndromes that can lead to debilitating symptoms, which have limited Mr. Bostrom’s activity. These unpredictable functional limitations make maintaining full time employment on an ongoing basis unlikely. Mr. Bostrom has had a (predictably) unpredictable symptom burden since I have known him. There are times he is unable to engage in even simple activities of daily living due to fatigue and chest pain with minimal exertion or even at rest. I feel a great deal of his fatigue burden is related to his underlying coronary artery disease and ischemic cardiomyopathy. Id. (emphasis added). Dr. Mudd described Mr. Bostrom as a “reliable historian” who is “nothing but compliant with treatment” recommendations. Id. Dr. Gelow confirmed similar incapacity in her March 10, 2015 chart note, writing: He continues to have insomnia...and is not able to sleep more than 4-6 hours a night and constant fatigued...not been active..some chest discomfort [with minimal activity],..gets chest pain...gets short of breath with exertion. AR 998; see AR 989-95. She noted Bostrom had “Chronic systolic heart failure due to Ischemic cardiomyopathy, stage C, Functional Class II-III,” and that he was relatively stable, yet “mainly limited by fatigue and shortness of breath,” as well as “insomnia.” AR 989-95. She also assessed “Coronary artery disease s/p CABG [coronary artery bypass surgery]” with “chest discomfort” and “shortness of breath.” AR 995. She confirmed total and permanent disability, writing by letter dated September 30, 2015: I have reviewed the letter dated August 4, 2015 written by Dr. Mudd regarding Mr. Bostrom’s medical condition. I have had the opportunity to care for Mr. Bostrom in the past and agree with Dr. Mudd he is impaired due to his cardiovascular disease rendering him disabled from all gainful employment. I expect his disability to be permanent. AR 1390 (emphasis added). PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 22 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 27 of 36 Dr. Siqueira documented in his chart note dated August 25, 2016 (AR 1063-73) how Mr. Bostrom’s cardiac conditions have substantially narrowed the scope of his daily life: He continues to have dyspnea brought on by very mild exertion as well as recurrent chest pains that are relieved by discontinuation of physical activity or sublingual nitroglycerin. He also complains of recurrent short lived palpitations and tells me that they have not been documented by an electrocardiogram or Holter monitor. He may feel slightly dizzy during those spells…He is very much aware that his left ventricular function may continue to deteriorate, particularly if he gets another heart attack, and the only way out could be heart transplantation and Dr. James Mudd would be the right person. He has had great difficulties in concentrating on new tasks, sleeps poorly, not infrequently will have bad dreams…. AR 1063. (emphasis added). Dr. Siqueira, too, concurred with Dr. Mudd, and discussed Mr. 14 Bostrom’s cognitive problems: He has been evaluated at the Northwest ADHD Treatment Center by Meghan McLain, PsyD and also considered disabled by Dr. James Mudd. I agree with those assessments. In addition he seems to have been left with some neurocognitive dysfunction from the multiple episodes of ventricular fibrillation cardiac arrest and/or prolonged cardiopulmonary bypass procedure. He does appear to have difficulties with concentration and, combined with his severe cardiac dysfunction, it is not very likely he would be able to perform well and maintain employment, even with desk work. AR 1071, 1073. Dr. Laborie summarized Mr. Bostrom’s history and symptoms and explained in detail the basis for her conclusion that he remains totally disabled by letter of September 2015: / / / / / / / / 14 Mr. Bostrom’s rationale for establishing care with Dr. Siqueira underscores the seriousness of his heart condition: “[Mr. Bostrom] has been living not very far from PSVMC [Providence St. Vincent Medical Center] and wanted a local cardiologist to be familiar with his problems, in case of an emergency would arise and the paramedics would bring him to the hospital.” Id . PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 23 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 28 of 36 History: Keith has a history of coronary artery disease, bypass surgery, myocardial infarction, chronic angina and systolic heart failure due to ischemic cardiomyopathy. He is a functional class C. AR 1013. Symptoms: Keith suffers from daily, severe fatigue. He has variable degrees of lower extremity swelling, intermittent dizziness, shortness of breath, chest pam, arm pain and palpitations which are all moderate in nature. Mild to moderate physical activity and minor emotional stress all aggravate his symptoms. Keith is required to take multiple medications which further exacerbate his fatigue and cause headaches. Id. Limitations: Due to above, Keith is highly-impaired in his activities of daily life. I believe that his cardiac condition, alone, renders him disabled. Duties such as light-housekeeping or showering can be taxing. I do not imagine he could regularly engage in any activity that required prolonged (greater than 5-10 minutes) standing, walking without developing dizziness, chest pain or shortness of breath. He could not run lift weights or push/pull with any frequency. It would be unsafe for him to climb. Positions such as crawling/ crouching would not be well-tolerated due to blood pressure shifts/dizziness. He needs frequent prolonged, breaks to elevate legs if swelling present. I would be highly worried about his ability to tolerate emotional/psychological work stress considering this is a trigger for angina or chest pain. Keith is a highly-intelligent individual. I remember him pro-actively searching for nutritional/physical and other supportive therapies after his Ml in 2011 He has attended regular follow-up appointments with me and always provided reliable history. He is a cooperative partner in his care and been compliant with medications and completing lab work. AR 1013 (9/7/15). Predictably, Mr. Bostrom has suffered psychological symptoms since his massive heart attack, cardiac arrest and permanent disability. His therapist, Dr. McLain, reported that she was treating him for severe major depressive disorder and PTSD “onset following a major heart PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 24 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 29 of 36 attack in March 2011.” AR 1011 (8/24/15). She explained that he “continues to suffer from significant symptoms” including “depressed mood, anhedonia, lack of motivation, fatigue, difficulties concentrating, decreased appetite, weight loss, hopelessness, irritability, nightmares, physiological re-experiencing, avoidance, intrusive memories, anxiety, social withdrawal, and numbness.” Id. She stated that these symptoms “have significantly impacted Keith’s ability to perform activities of daily living and, along with his medical symptoms, have prevented him from returning to work.” Id . She noted that he had had periods of not being able to get out of bed for 2-3 days, and had presented at therapy sessions over the past 1.5 years or more with all of these symptoms. Id. Dr. Mudd put the psychological symptoms in the context of a severely, permanently, progressively ill heart patient who suffered cardiac arrest and, miraculously, survived: “...depression and anxiety related to sudden death and CPR... are common [symptoms] in cardiac patients[,] who have had a traumatic cardiac event and who are left with chronic systolic heart failure and chronic angina.” AR 987 (8/4/15). He emphatically reiterated that Mr. Bostrom is totally disabled: I believe that Mr. Bostrom’s cardiac conditions alone have resulted in his total disability, as he was a working and functional individual prior to his sudden death. I fully support his disability from all gainful employment. Id. (emphasis added). Dr Laborie stated: Keith has also developed depression and anxiety after his Ml due to forced lifestyle-changes: physical and financial. It is my strong opinion that his current anxiety and depression are a consequence of his heart disease. Heart attack survivors have a 3-fold elevated risk of depression over the general population. Please note that I did not treat him for anxiety and depression prior to March 2011. AR 1013 (9/7/15) (emphasis added). PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 25 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 30 of 36 iv. Mr. Bostrom’s statements are further evidence of his disability. Six months after his cardiac arrest, Mr. Bostrom described his symptoms on Prudential claim forms (AR 603-28): [I] have chest pains, varying levels of tightness in the chest, shortness of breath, varying degrees of headaches, light headedness, nausea in my stomach, swelling in knees, muscle weakness, depression and trouble sleeping, mental gaps in recall and completing sentences. AR 625 (4/11/11). He documented his continuing, disabling symptoms on another form in February 2014 (AR 1171-80), and stated the conditions that prevented a return to work as: [M]yocardial infarction, congestive heart failure, ventricular fibrillation arrest cardiogenic shock, acute respiratory failure, elevated [transaminases][liver enzymes], [thrombocytopenia] [a deficiency of platelets in the blood], coronary artery disease, left ventricular aneurysm, empty sebaceous bleb lul [left upper (lung) lobe], heart failure, reduce[d] LV [left ventricular] function. AR 1171. He noted symptoms of stress, anxiety (AR 1171), sleeping problems, nightmares, hand and finger numbness (AR 1172), difficulty standing and cognitive/memory deficits. AR 1173. As shown, these disabling symptoms persisted. Mr. Bostrom described his incapacity and radically changed life due to his massive heart attack in a statement submitted with his appeal: Physically I have been disabled by the damage to my heart. I also have [scarring] in my right wrist from the cauterization of my artery, performed twice, leaving it with pain with any bending. AR 1387 (9/24/15). He described symptoms of heart failure and angina – fatigue, exhaustion, shortness of breath and chest discomfort. AR 1387-88. He noted muscle pains in his right breast, left shoulder and arm that are aggravated by standing and that cause numbness and tingling in his arm and hand. AR 1388. He explained his heart attack has left him with cognitive problems: I spent extended time, twice the normal limit, on the heart lung machine during surgery. This has left me with obvious problems with my cognitive functions. This was compounded by the time without oxygen to my brain after flat lining 5 times. My difficulties are so great that I had to explain to my lawyers what I PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 26 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 31 of 36 intend to say in this letter and they have written or heavily revised my wording and grammar. AR 1387. See AR 1387-88. Mr. Bostrom described his active life before the heart attack: Before my heart attack, I was very active. I loved fishing, hiking, boating, swimming, running, skiing, camping, hunting, pedaling motto cross bike, weight training, skateboarding, wakeboarding, hackie sack, soccer, football, baseball, basketball. There was no limitation in my physical or mental abilities on what I could accomplish. AR 1387. He explains that all of that has changed: Currently I can't take part in many activities that I had once enjoyed. When I do there [are] many problems that take the fun out of it. When I go fishing I'm confined to sitting on the bank. I can no longer go fishing or to do other outdoor activities alone, and they drain me. I can’t go far from a bathroom and find myself wondering how long would it take to get medical attention should a cardiac event occur. I am very limited in all activities with my cardiac problems. Id. Not a single provider ever asserted that Mr. Bostrom was not disabled. His claim was fully supported his disability claim by Dr. Mudd and Dr. Gelow, specialists (and professors) with the OSHU Heart Failure Clinic, Dr. Siqueira, also a cardiologist, Dr. Laborie, his primary care physician, and Dr. McNair, his counselor. Despite their conclusive chart notes, reports and fully supportive letters, Prudential terminated Mr. Bostrom’s disability claim and denied his appeal, leaving him financially desperate and under intense stress. C. Prudential Erroneously Terminated Mr. Bostrom’s LTD Claim. When Prudential terminated benefits in March 2015, Mr. Bostrom’s condition had not improved. He had seen Dr. Mudd’s colleague, Dr. Christopher Chien, on September 22, 2014, with a main complaint of “ limiting chest pain.” AR 1299. Dr. Chien noted, “Mr. Bostrom continues to have class III symptoms despite his EF [ejection fraction] of 35-40%. He has PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 27 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 32 of 36 elevated blood pressures…” and “has symptoms consistent with PTSD.” AR 1300. Dr. Laborie noted on October 28, 2014 that Mr. Bostrom had been “feeling down, more irritable… mood not controlled” and was “[n]ot sleeping and having more nightmares” and had “stopped exercising… worked too hard with chest pain.” AR 760. He was “[s]eeing a counselor regularly” and “struggling adjusting to new life whereby activity is severely limited by heart disease.” Id. And on February 19, 2015, Dr. Mudd informed Prudential’s consultant that Mr. Bostrom cannot work. AR 766. there was no reasonable basis for Prudential to terminate his claim. As shown above, Mr. Bostrom’s appeal provided further evidence of disability, including: • Dr. Mudd’s August 4, 2015 letter, confirming Mr. Bostrom’s permanent, total disability: “These unpredictable functional limitations make maintaining full time employment on an ongoing basis unlikely. Mr. Bostrom has had a (predictably) unpredictable symptom burden since I have known him. There are times he is unable to engage in even simple activities of daily living due to fatigue and chest pain with minimal exertion or even at rest.” AR 987; see pp. 21-22, 25, supra . • Dr. Gelow’s September 30, 2015 letter, confirming her review of Dr. Mudd’s August 4 letter and stating: “I agree with Dr. Mudd he is impaired due to his cardiovascular disease rendering him disabled from all gainful employment. 1 expect his disability to be permanent.” AR 1390; see p. 22, supra . • March 10, 2015 Heart Failure Clinic chart note: “He is not able to sleep more than 4-6 hours a night and constantly fatigued. He has not been very active and does one task at a day such as cleaning the bathroom, going to a friend’s house or grocery shopping. He went grocery shopping about a week ago and walked for 2 hours and carried bags and had some chest discomfort. He usually gets chest pain when anxious or in a hurry and in the mornings before he takes his medications.” AR 989. “overall stable. He is mainly limited by fatigue and shortness of breath which have been stable and likely due to insomnia and inactivity.” AR 995. • Dr. Laborie’s July 28, 2015 chart note and letter, confirming Mr. Bostrom “is highly-impaired in his activities of daily life”; and that “his cardiac condition, alone, renders him disabled”, “I do not imagine he could regularly engage in any activity that required prolonged (greater than 5-10 minutes) standing, walking without developing dizziness, chest pain or PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 28 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 33 of 36 shortness of breath”, and “his current anxiety and depression are a consequence of his heart disease.” AR 1013; see pp. 23-25, supra. • Dr. Laborie’s July 28, 2015 chart note, documenting dizziness, angina, headaches, lack of energy, palpitations. AR 1017. Patient’s health goals were: 1. New heart. 2. Live at least 10 more years.” “Patient's barriers to care/goals” were: 1. Fatigue. 2. Chest pain.” AR 1025. “Recent increase in Imdur has improved angina, but many days cannot climb a flight of stairs without chest pain and sob. Fatigue is severe. On Sertraline… for depression which has helped but still feels down most of time.” AR 1041. • Dr. Siqueira’s August 25, 2015 chart note and letter concurring with Dr. Mudd, and noting that Mr. Bostrom “appears to have some neurocognitive dysfunction from the multiple episodes of ventricular fibrillation cardiac arrest and/or prolonged cardiopulmonary bypass procedure” (AR 1071, 1073) and that with his “difficulties with concentration… combined with his severe cardiac dysfunction, it is not very likely he would be able to perform well and maintain employment, even with desk work.” AR 1073; see AR 1067-73; see p. 23, supra . • Dr. McLain’s August 24, 2015 report noting symptoms of major depressive disorder and continuing psychological symptoms, following his major heart attack in 2011. AR 1011; see pp. 24-25, supra . On October 13, 2015, Mr. Bostrom provided documentation of yet another painful condition: A cervical MRI obtained on September 14, 2015 had revealed “moderate to severe foraminal stenosis with possible nerve root impingement at C3-4 and C6-7 and moderate to severe canal stenosis with flattening of the cord at C5-6 and C6-7.” AR 1392-93. He was being treated by Dr. Laborie for neck and arm pain while waiting for evaluation by a specialist. AR 1392. Mr. Bostrom explained in his appeal statement that he “now ha[s] a pinched nerve in my back/neck that leaves me with severe pain in my left arm” and that “I cannot stand upright for any time before the onset of the twitching, pain, numbness, tingling in my arm and hand. Whatever little I could do before has been negated at this point.. The nerve block and painkiller and anti-inflammatory help with the pain, but can't remove it all.” AR 1388. Prudential’s response to Mr. Bostrom’s appeal was to secure additional file reviews and deny it. AR 1396-1428, 1540-46. Prudential cited documentation of activity by Dr. Gelow in her PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 29 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 34 of 36 March 10, 2015, chart note, stating that the chart note documented that Mr. Bostrom had “clean[ed] a room in his house and then going to a friend’s house to visit.” AR 1543. Prudential 15 asserted that “[t]here was also note of grocery shopping when he walked for two hours and shopped, and some chest discomfort had occurred.” Id. Prudential admitted, however, that Dr. Gelow had documented “[s]hortness of breath with exertion, and occasional lightheadedness and palpitations.” Id. Nothing in Prudential’s denial letter (or in its consultants’ reports) refutes the unequivocal, repeated, consistent statements by Mr. Bostrom’s providers fully supporting disability. D. Mr. Bostrom Is Entitled To Reinstatement Of His LTD Claim And Benefits To The Date Of Judgment. As discussed, Mr. Bostrom’s providers have always supported his disability claim and Prudential approved and paid his claim for approximately 2½ years under the “any gainful occupation” disability provision. His condition has not improved, according to the record. The only change to his condition made clear in the record is that the loss of disability benefits has put him under severe stress, precisely the worst situation for a cardiac patient. The Ninth Circuit held in Sterio v. HM Life , 369 Fed. Appx 801, 805 (9th Cir. 2010), that an “award of retroactive [disability] benefits [was] appropriate because HM Life’s denial of benefits [was] contrary to the factual record.” Id. Indeed, this is not a case in which the plan fiduciary “failed to apply the plan provisions properly”, but rather one in which its claim termination was the “result of a superficial and cursory review of the record and… unsupported by the record.” Petrusich v. Unum Life Ins. Co. of Am., 984 F. Supp. 2d, 1112, 1124 (D. Or. 15 Actually, Dr. Gelow documented that Mr. Bostrom “has not been very active and does one task at a day such as cleaning the bathroom, going to a friend’s house or grocery shopping.”AR 989 (emphasis added). PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 30 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 35 of 36 2013). There is no basis for Prudential to be allowed “another ‘bite of the apple.’” Id. ; see also, Toth v. INA Life Insurance Company of New York, 638 F. Supp. 2d 1262, 1276 (D. Or. 2009) (on de novo review, the plaintiff had sustained her burden of proof of disability and that “a judgment should be entered requiring defendants to restore plaintiff’s disability benefits.”); James v. AT&T West Disability Benefits Program, 2014 U.S. Dist. LEXIS 75265 (N.D. Cal. June 2, 2014) (concluding that remand was a useless formality where the plan ignored overwhelming evidence of disability and that the appropriate remedy was to provide James with LTD benefits). Accordingly, Mr. Bostrom respectfully requests that Prudential be ordered to reinstate his LTD claim and monthly benefit effective March 10, 2015, and continuing to the date of judgment. III. CONCLUSION For the foregoing reasons, plaintiff Keith Bostrom respectfully requests that this Court grant his motion and issue judgment in his favor and against defendant Prudential, ordering Prudential to reinstate his LTD claim effective March 20, 2015, and to issue benefits to the date of judgment. Dated: November 8, 2016. Respectfully Submitted, Megan E. Glor Attorneys at Law s/ Megan E. Glor Megan E. Glor, OSB No. 930178 Attorney for Plaintiff Keith Bostrom PLAINTIFF’S MOTION FOR JUDGMENT PURSUANT TO FRCP 52(a) - Page 31 of 31 Case 3:16-cv-00596-YY Document 22 Filed 11/08/16 Page 36 of 36