Espindola v. Standard Insurance Company et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.June 9, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Glenn R. Kantor (SBN: 122643) E-mail: gkantor@kantorlaw.net Alan E. Kassan (SBN: 113864) E-mail: akassan@kantorlaw.net Brent Dorian Brehm (SBN: 248983) E-mail: bbrehm@kantorlaw.net KANTOR & KANTOR, LLP 19839 Nordhoff Street Northridge, CA 91324 Telephone: (818) 886-2525 Facsimile: (818) 350-6272 Attorneys for Plaintiff, DEDRA ESPINDOLA UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DEDRA ESPINDOLA, Plaintiff, vs. STANDARD INSURANCE COMPANY and DST SYSTEMS, INC., LONG TERM DISABILITY PLAN, Defendants. CASE NO. 2:16-cv-01301-JAM-CKD PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Date: August 22, 2017 Time: 1:30 p.m. Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 1 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 TO DEFENDANTS AND THE ABOVE ENTITLED COURT: PLEASE TAKE NOTICE that on August 22, 2017, at 1:30 p.m., Plaintiff will and hereby does move the Court for an Order correcting Defendant’s mistake, finding her disabled under the terms of the Plan, awarding her retroactive benefits under the Plan, plus applicable interest, and allowing her attorneys to bring a motion for attorneys’ fees and costs as allowed under ERISA. Said Motion will be heard before the Hon. John A. Mendez in the above entitled Court, located at 501 I Street, Courtroom 6, Sacramento, California 95814. Plaintiff’s Motion for Summary Judgment is filed in accordance the Court’s scheduling order. [Docket No. 20]. Said Motion will be based upon this Notice of Motion, Memorandum of Points and Authorities submitted herewith, Plaintiff’s Separate Statement of Undisputed Facts, the supporting Declaration of Brent Dorian Brehm, and upon all the papers and pleadings on file herein. Unless otherwise stated, citations to evidence are to the bates stamps Standard affixed to the bottom right hand corner of record, omitting the prefix “STND 16-03288-00”. DATED: June 9, 2017 KANTOR & KANTOR, LLP By: /s/ Brent Dorian Brehm Brent Dorian Brehm Attorneys for Plaintiff Dedra Espindola Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 2 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. SUMMARY OF FACTS .................................................................................................. 2 A. Despite utilizing workplace accommodations for years, Ms. Espindola’s symptoms reached the point where she was no longer able to work.................................................................................... 2 B. Standard determines Ms. Espindola suffered full time work impairment “to the present and beyond.” ................................................. 4 C. Standard approves and denies Ms. Espindola’s long term disability claim in the same letter. ............................................................ 5 D. Ms. Espindola provides updated medical support for her continued disability. .................................................................................. 6 E. Standard claims it cannot confirm Ms. Espindola’s ongoing disability, so it sends her file to its Special Investigations Unit (SIU). ................................................................................................. 8 F. Due to the delay in rendering a decision, Ms. Espindola hires counsel to appeal the termination of her long term disability benefits. ..................................................................................................... 9 G. Benefits are reinstated because Standard confirms Ms. Espindola’s impaired functional capacity and that its database of vocational information does not accurately reflect how jobs are performed today. ....................................................................................................... 11 H. Standard determines Ms. Espindola’s condition has not changed and thus she is disabled from any occupation under the terms of the Plan. .............................................................................................. 12 I. Standard overrides the finding of disability and has Ms. Espindola travel 140 miles to attend an examination but, inexplicably, performs no keyboarding or fine fingering testing. ................................ 13 J. Without any typing testing, measurements, or medical documentation of a change in Ms. Espindola’s condition, Dr. Fraback changes his opinion regarding Ms. Espindola’s keyboarding ability. Standard terminates the claim based, in part, on inaccurate information. .......................................................... 16 Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 3 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 K. Ms. Espindola appeals, providing medical evidence, functional capacity testing, and vocational findings that all support her disability. ................................................................................................. 17 1. Updated medical records show no improvement. ........................ 17 2. Second Functional Capacity Evaluation finds Ms. Espindola disabled. ....................................................................... 18 3. Vocational Occupational Analysis finds Ms. Espindola disabled. ....................................................................... 19 L. Standard upholds the termination despite Plaintiff’s symptoms being fully consistent with an individual with lupus and fibromyalgia. ........................................................................................... 20 III. POINTS AND AUTHORITIES .................................................................................... 22 A. Ms. Espindola’s self-reported symptoms, when combined with her diagnosis, work history, treating physician statements, functional capacity evaluation results, and award of Social Security disability benefits are more than sufficient to meet her burden of proof................ 22 B. Standard offered no evidence of a significant change in Ms. Espindola’s condition when recanting its previous findings of disability. ................................................................................................. 24 C. Ms. Espindola’s absenteeism precludes consistent work capacity. ........ 25 IV. CONCLUSION ................................................................................................. 25 Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 4 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 TABLE OF AUTHORITIES Cases Armani v. Nw. Mut. Life Ins. Co., 840 F.3d 1159 (9th Cir. 2016) .............................................................................. 22 Bledsoe v. Metro. Life Ins., 90 F. Supp. 3d 901 (C.D. Cal. 2015) .............................................................. 23-24 Demer v. IBM Corp. LTD Plan, 835 F.3d 893 (9th Cir. 2016) ................................................................................ 23 Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640 (7th Cir. 2007) ................................................................................ 23 Gallegos v. Prudential Ins. Co. of Am., 2017 WL 2418008 (N.D. Cal. June 5, 2017).................................................. 23-25 Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir. 2003) ................................................................................ 23 Jahn-Derian v. Metro. Life Ins. Co., 2016 WL 1355625 (C.D. Cal. Mar. 31, 2016) ............................................... 22-24 Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) .............................................................................. 22 LaVertu v. Unum Life Ins. Co. of Am., 2014 WL 1224736 (C.D. Cal. March 25, 2014) ................................................... 25 Leetzow v. Metro. Life Ins. Co., 2016 WL 7324092 (C.D. Cal. Dec. 5, 2016) .................................................. 23, 25 Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321 (11th Cir. 2001) ............................................................................ 24 Marcus v. Califano, 615 F.2d 23 (2nd Cir. 1979) ................................................................................. 23 McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586 (8th Cir. 2002) .......................................................................... 24-25 Muniz v. Amec Const. Management, Inc., 623 F.3d 1290 (9th Cir. 2010) ........................................................................ 22, 25 Palmer v. Standard Ins. Co., 994 F. Supp. 1221 (D.C. Oregon 1998) ............................................................... 23 Porco v. Prudential Ins. Co. of Am., 682 F. Supp. 2d 1057 (C.D. Cal. 2010) ................................................................ 24 Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 5 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Saffon v. Wells Fargo & Company Long Term Disability Plan, 522 F.3d 863 (9th Cir. 2008) ................................................................................ 24 Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir. 2011) ................................................................................ 24 Sanchez v. Monumental Life Ins. Co., 102 F.3d 398 (9th Cir. 1996) ................................................................................ 22 Silver v. Exec. Car Leasing Long-Term Disability Plan, 466 F.3d 727 (9th Cir. 2006) ................................................................................ 22 Yancy v. United of Omaha Life Ins. Co., 2015 WL 9311729 (C.D. Cal. Dec. 18, 2015) ...................................................... 24 Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 6 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 I. INTRODUCTION This ERISA case involves a long term disability claim based on disabling lupus and fibromyalgia. According to Ms. Espindola, these conditions caused disabling levels of pain and fatigue - among many other symptoms. For multiple years, Standard agreed that he hand pain Ms. Espindola reported after small amounts of typing rendered her disabled under the terms of the Plan (her only work experience is computer based). Then, without evidence of a change in Ms. Espindola’s condition, Standard terminated her benefits based on the assertion that a lack of objective evidence of pain and fatigue justified a rejection of her disabling symptoms. However, Ms. Espindola’s disability claim is not limited to her typing limitation. Her conditions - lupus and fibromyalgia - cause widespread and persistent pain and fatigue. Her lupus also has flares, when her symptoms become even worse. Certainly one aspect of her claim is difficulty typing, but it is not the only aspect. Further, Standard’s own doctors recognize these symptoms can occur without the presence of “objective” indicators. Thus, like with all subjective symptoms claims, the lack of objective evidence is not a valid basis for terminating benefits. In fact, if Standard knew of a test that would provide “measurable evidence” of Ms. Espindola’s pain or fatigue, it was under an obligation to tell her what this test was so that she could undergo the testing. Moreover, Standard had the opportunity to perform whatever testing it wanted on Ms. Espindola when it had her examined. Inexplicably, Standard failed to do any testing of Ms. Espindola’s typing ability - much less testing to determine how her wide spread pain and fatigue impacted her ability to work a full-time occupation on a continuous basis. Yet, there was “objective” evidence that Ms. Espindola’s symptoms were disabling. Standard simply chose not to accept this evidence. Over the course of her claim, Ms. Espindola provided two functional capacity evaluations. Both supported her disability based on testing. Combined with the opinion of her treatment providers who knew her quite well (there are over 60 treatment visits documented in the file), the Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 7 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 surveillance, the support letters, and the stark reality that Ms. Espindola had a very comfortable job that few people would choose to leave in their 30’s, the evidence simply does not point to a person who is capable of working. Standard’s decision to terminate Ms. Espindola’s claim was inconsistent with the medical evidence, the opinions of her treating physician, the decision of the Social Security Administration to award disability benefits, and simple common sense. Ms. Espindola asks the Court to disregard Standard’s erratic, unreliable. and self-serving analysis, correct its mistake, and find her disabled under the terms of the Plan. In doing so, she asks for an award of benefits to date of judgement, plus applicable interest, and to allow her attorneys to bring a motion for attorneys’ fees and costs under ERISA. II. SUMMARY OF FACTS A. Despite utilizing workplace accommodations for years, Ms. Espindola’s symptoms reached the point where she was no longer able to work. Ms. Espindola was a database administrator for DST - where she worked since December 2000. (667). Her occupation required her to construct, tune, and restructure queries to ensure optimal data access and response. It was a challenging position requiring long hours of computer work and continuous typing. (498, 566, 1242). Before her long term disability began, Ms. Espindola had a history of idiopathic thrombocytopen purpura (“ITP”) and, more recently, lupus. She experienced flares and exacerbations through the years prior to her disability. In 2004, DST accommodated her conditions by allowing her to start telecommuting three days a week. In 2006, DST further accommodated Ms. Espindola by allowing her to telecommute on the other two days on an as-needed basis. (498). By 2008, DST had agreed to allow Ms. Espindola to work from home on a full time basis as an ADA accommodation. (1185). However, despite these accommodations, by April 6, 2012, Ms. Espindola could no longer perform the duties of her occupation. (498, 1185). Ms. Espindola took an FMLA leave to attempt to recover. Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 8 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 At the end of spring 2012, Ms. Espindola was consistently experiencing fatigue, weakness, and joint pain to her hips, elbows and wrists. She was also experiencing hair loss, frequent headaches, and constant bruising. (499). While she returned to work in May 2012, treatment notes from Dr. Daniel Watrous, rheumatology and clinical immunology, from May 23, 2012 showed symptoms of joint and muscle pain, fatigue, rashes, and some thinning of Ms. Espindola’s hair. (342). Without abatement in her disabling symptoms, Ms. Espindola had to take a second FMLA leave from June to July 2012. (499, 1185). On June 9, 2012, Ms. Espindola treated with Dr. Susan Lemon, rheumatology. (684). In addition to the above-mentioned symptoms, Ms. Espindola experienced nonrestorative sleep (despite nine hours of sleep) and lupus flairs causing her to miss “sporadic days at work ….generally three times monthly.” (295). By the time Ms. Espindola treated with Dr. Watrous again, on June 20, 2012, treatment notes showed she “feels worse.” (337). She was aching and sore all over. Her wrists and hips were tender with exercise. Her worst pain was in her elbows, wrists, hands, hips, and feet. (337). A return visit to Dr. Watrous on July 5, 2012 showed that Ms. Espindola “feels better.” (334). This corresponded with Ms. Espindola attempting to return to work. (499). Based on Dr. Watrous’ July 5 notes, it is not surprising this attempt was unsuccessful. He documented Ms. Espindola’s stiffness was exacerbated by activity and over-activity, while alleviated by rest. (334). A disability form Dr. Watrous completed showed activity “exacerbated” her joint and muscle pains. (368). After few days back on the job, Ms. Espindola’s symptoms worsened. Treatment notes from July 10, 2012 showed Ms. Espindola started getting fevers, migraines, body aches, and fatigue. Her joint pain was mild to moderate “and worsening for a few days after a rapid onset.” (328). Ms. Espindola described her symptoms as “fatigue, joint pain, muscle pain, migraines, bruising, rash, hair loss.” (683). Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 9 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Dr. Watrous’ treatment notes from July 24, 2012 again reflected that activity exacerbated Ms. Espindola’s symptoms. (325). His notes from August 14, 2012, also showed increased symptoms. Dr. Watrous stated, “Continued pain to joints with increased amount of stiffness, having weakness to hands and arms” and “since the last visit the patient feels worse.” (320). Dr. Watrous provided an off work note. (321). While initially this leave was seen as temporary, due to continued joint pain, fatigue and weakness associated with her diagnosis of lupus, it turned out Ms. Espindola ceased work permanently on August 15, 2012. Ms. Espindola had tried to continue working, unfortunately this time she was unable to return to the job she loved. B. Standard determines Ms. Espindola suffered full time work impairment “to the present and beyond.” In September 2012, Ms. Espindola followed-up with Dr. Lemon. It was noted that she continued to have fatigue and pain in her elbows, wrist, and hips. Dr. Lemon noted, “[s]he has not had much meaningful relief of her articular symptoms with the addition of Imuran or being off of work.” (298). In October 2012, Ms. Espindola was put on Personal Leave of Absence by DST. (499). Treatment with Dr. Watrous showed Ms. Espindola’s pain, stiffness, and fatigue were all worse. (315). On October 12, 2012, Dr. Watrous filled out an Attending Physician’s Statement for Standard where he noted that Ms. Espindola was unable to work due to lupus related fatigue and joint pain. (366). The following month, Dr. Watrous treated Ms. Espindola and noted increased fatigue and continued joint pain. Ms. Espindola had a weak grip and, at times, these symptoms made completing activities of daily living (ADL) difficult. (210). Dr. Watrous also completed ADA paperwork for DST (titled “Interactive Process Questionnaire”). (221-22). Therein, Dr. Watrous stated that Ms. Espindola could not perform the duties of her occupation and set the following limitations: ~ Walking limited to one city block; ~ Sitting limited to ten minutes; ~ Standing limited to 10-20 minutes; Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 10 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 ~ Unable to carry any item greater than 5-10lbs; and ~ Limited computer use. (1185-86). Ms. Espindola made a claim to Standard for disability benefits. One of the first steps Standard took was performing a vocational review. On November 18, 2012, Standard utilized a computer program - Job Browser Pro - to determine the physical demands of Ms. Espindola’s occupation. The program draws its information from the Dictionary of Occupational Title (DOT). (1239-40). Of note, the program stated that Ms. Espindola’s occupation required only occasional fingering/typing. (1239). On December 6, 2012, Ms. Espindola spoke with Standard. She informed them that medications were not helping. She continued to experience headaches, rashes, dry itchy skin, fatigue, and joint pain. She explained her occupation required her to sit all day and type, which she could not do as “her hands and hips were hurting too badly to continue.” (635). She was also feeling “extreme fatigue and often finds herself needing to lie down and sleep.” (635). These symptoms were present despite being on Cymbalta - “which had helped.” (635). She expressed she did not feel depressed and definitely did not feel depression had anything to do with her inability to work. (635). The same day Standard performed a medical review. Standard’s reviewer determined that “impairment is reasonably supported from the claimants [cease work date] to the present and beyond for full time work due to claimant’s ongoing symptoms of lupus and recent medication adjustments.” (1663). Standard found, “[b]ased on the available medical documentation, it is this analyst’s recommendation to approve this claim for LTD benefits. Claimant is suffering a number of symptoms associated with her diagnosis of lupus that would restrict her from being able to perform the Material Duties of her Own Occupation with pace and persistency.” (1663). C. Standard approves and denies Ms. Espindola’s long term disability claim in the same letter. Six days later, Standard penned a letter explaining its disability findings. The December 12, 2012 letter stated, “We are pleased to inform you that your Long Term Disability (LTD) claim with Standard Insurance Company (The Standard) has been Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 11 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 approved. In addition, based on the information in your claim file, your claim will close on January 14, 2013.” (386). The same day, Standard sent Ms. Espindola a second letter which stated it “explains the approval and termination” of benefits. (384). However, neither letter explained why Standard had determined “Dedra Espindola should be able to return to work on January 15, 2013.” (384). The only information Ms. Espindola had for Standard’s decision to terminate her claim was the vague statement “[t]he most current information we have indicates that you should be able to return to work on January 15, 2013.” (386). Standard stated that, if Ms. Espindola was not able to return to work after January 14, 2013, she was to provide updated medical records. (386). D. Ms. Espindola provides updated medical support for her continued disability. On January 8, 2013, Dr. Watrous’ office wrote a letter stating that Ms. Espindola “will be off work due to illness until April 8, 2013.” (213). The note was given to Ms. Espindola the following day when Dr. Watrous treated Ms. Espindola. The treatment record shows that Ms. Espindola was having trouble with pain, stiffness, fatigue, activity, and walking. She was also having a degree of trouble with sleeping. (1391). On January 10, 2013, Ms. Espindola wrote DST’s HR Department a letter informing it that the severe symptoms of her disease were keeping her from returning to work. She wrote: My Dr. is continuing to keep me off work. Unfortunately, this illness is showing no signs of improvement.  This breaks my heart as DST Output has treated me so well & from what I understand, my employment with you will end in February. (216). On January 11, 2013, Dr. Watrous sent Standard a completed copy of its Physician’s Statement of Disability form. Therein, he assessed Ms. Espindola’s joint pain, fatigue, and weakness left her with only “occasional” functional work capacity (up to 2.5 hours in an eight hour day). (214-15). He also documented that Ms. Espindola had shown a “poor response to treatment.” (215). Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 12 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 On January 25, 2013, Ms. Espindola completed Standard’s Activities and Capabilities Questionnaire. She noted that there was no improvement in her condition, which resulted in continued inability to work. (269). She noted her husband made her meals, did the household work, and assisted with child supervision depending on her level of fatigue and pain. (270). Her husband also had to perform long distance driving due to her hand, wrist, and hip pain this caused. (271). With regard to work and rehabilitation, she was “hopeful the pain will go away & I can return to work.” (272). Ms. Espindola treated with her internist, Dr. Raman Verma, early in February. He noted “[s]he continues to have periodic flareups and she is not able to do the job which she was able to do.” (102). The following day, treatment notes from Dr. Watrous documented that Ms. Espindola “feels worse.” (178). Pain, fatigue, stiffness, and trouble with activity were all worse. Dr. Watrous’ office gave Ms. Espindola a letter that stated, “[p]ain can fluctuate at times, but having frequent flares that make it difficult to perform duties required by her job description.” (265). He supported disability until Ms. Espindola’s disease was better controlled. (265). On February 19, 2013, Dr. Verma, wrote to Standard. He noted he had treated Ms. Espindola since 2006 and had seen her condition through the diagnosis of lupus and fibromyalgia. He documented that she was experiencing severe joint and muscle pains. He also wrote: “She has been taking the Imuran, Plaquenil, Prednisone and Cymbalta and in spite of that she continues to have severe pain and sometimes swelling of the joints with the morning stiffness and she is not able to work or do the activity of daily living without hurting.” (266). Dr. Verma confirmed that he had advised Ms. Espindola to stop working because work can “make her condition worse.” (266). He advised Ms. Espindola to apply for permanent disability because “her condition does not seem that it will be curable.” (266). On March 21, 2013, Ms. Espindola treated with Dr. Watrous. Treatment notes documented her condition was not improved and she was “having difficult time even Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 13 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 cutting meat on salad due to increased pain to hands. Having to take naps daily due to increased fatigue to even perform ADLs.” (147). E. Standard claims it cannot confirm Ms. Espindola’s ongoing disability, so it sends her file to its Special Investigations Unit (SIU). On March 24, 2013, Standard had Dr. Joji Kappes perform the first paper medical review in the file. Dr. Kappes opinion was that Ms. Espindola’s “[lupus] under good control with immune suppression” due to medication. (256). Despite this finding, Dr. Kappes admitted that Ms. Espindola had symptoms of pain and fatigue. (256). This did not equate to Ms. Espindola being able to return to work. Rather, Dr. Kappes opinion was that Ms. Espindola had significant limitations and restrictions applicable into the end of 2012. When asked if those limits continued to the present, Dr. Kappes stated, “I believe limitations are applicable to the present, and she has followup [sic] scheduled 4/8/13.” (256). Among other symptoms, at the April 8, 2013 treatment session, Dr. Watrous documented that Ms. Espindola’s worst joint pain was in her wrists and hands. Joint pain, aching, soreness, and fatigue were present. (235). Dr. Watrous completed an Attending Physician’s Statement that day. Therein, he documented Ms. Espindola’s continued disability due primarily to lupus and, secondarily, fibromyalgia. The joint pain and fatigue she experienced limited her ability to lift, sit, stand, and perform fine finger movements (typing). (613). Dr. Watrous’ treatment notes from May 2013 also supported continued disability. (156). Because Ms. Espindola had difficulty getting Standard’s form completed, on May 23, 2013, she and Standard agreed to suspend the deadline for Standard to render a decision. (571). However, by that time, Standard determined surveillance and a full background investigation was necessary. Standard conducted covert surveillance on May 16, 17, and 18, 2013 - a Thursday, Friday, and Saturday. (589). On Thursday and Saturday, Ms. Espindola did not leave the house. On the Friday, she was a passenger in a vehicle that picked her child up from school and went Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 14 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 to the bank and a clothing store. (594-95). The closing memo from Standard’s SIU stated, “During three days of surveillance, Ms. Espindola was observed briefly outside her residence.” (601). On June 5, 2013, Standard had Dr. Kappes perform another review. Dr. Kappes’ opinion was that Ms. Espindola’s lupus had not gotten worse (it had been disabling), and the fibromyalgia was under treatment with Lyrica “and hence should not preclude a sedentary-level occupation.” (225). Standard did not issue a claim decision. F. Due to the delay in rendering a decision, Ms. Espindola hires counsel to appeal the termination of her long term disability benefits. On July 1, 2013, Ms. Espindola called Standard. (583). Standard claimed that Ms. Espindola had not provided written proof of disability. Ms. Espindola explained that she was unable to do her occupation, in part, because it required her to continually type. This typing was too painful for Ms. Espindola. (583). Standard disagreed about the typing requirement, as it had determined only occasional typing was required for the occupation. Due to the discrepancy, Standard invited Ms. Espindola to submit information regarding her job duties. (584). Ms. Espindola provided the information along with a letter dated July 4, 2013 (faxed July 10, 2013). (566). The DST job description she provided showed that computer usage may be required up to 100% of the time and may include heavy periods of keyboarding. (1237). Ms. Espindola explained: As I mentioned to you previously, it is difficult to even eat a meal without hand, wrist & elbow pain. I am not sure how I would even attempt typing 8 hours a day. I attended college to get my degree in this field and have been doing this for 12+ years, it saddens me to not be able to do this. (566). A few days later, Ms. Espindola treated with Dr. Watrous. The medical records reflected continuation of the previously disabling symptoms. (159-60). Based on the examination findings, Dr. Watrous’ office provided another letter. It stated, “No change or improvement in symptoms compared to previous exam, limited in functional Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 15 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 capacity to perform work due to joint pains and weakness. We support continued disability.” (223). On July 16, 2013, an attorney from Kantor & Kantor contacted Standard and discussed finalizing Ms. Espindola’s appeal. (564). A subsequent letter confirmed the appeal was due by September 30, 2013. (539). On September 27, 2013, with the assistance of Kantor & Kantor, Ms. Espindola submitted an appeal of the termination of her benefits. The appeal included medical records, employer records (showing exemplary work performance and employer satisfaction), results from a two-day Functional Vocational Examination, seven letters of support from co-workers, friends, and family, medical literature on lupus and fibromyalgia, and medical literature regarding the side effects of the medications Ms. Espindola was taking. (497-504). The two day Functional Vocational Examination confirmed via testing what all the other information provided showed: Ms. Espindola continued to be disabled. The examination took place on July 23 & 24, 2013. (170- 77). By noon, Ms. Espindola reported that, even after a break, she felt she was unable to complete the test because of pain and fatigue. However, she pushed herself and did complete both days of testing. (173). The examination revealed the following limitations: • Combination of standing and walking, maximum of 7 minutes; • Standing: maximum of 20 minutes; • Sitting Low (29"-height table): maximum of 25 minutes while performing an intermittent writing activity; • Waist Level Reaching: maximum of 11 minutes; • Chest Level Reaching: maximum of one minute; • Continuous Writing: maximum of 3 minutes; • Intermittent Writing: maximum of 50 minutes (using a marker); • Lifting with each hand: 5 to 7 lbs. with pain; and • Grip strength was reported at a maximum of 25 lbs. of pressure, with pain. (171-72). A typing test showed Ms. Espindola was unable to complete even four minutes of typing (although her typing speed was adequate over that time). (177). Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 16 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Ms. Espindola reported that the testing left her with body aches and pain due to “too much movement of hands, wrists, elbows. Too much sitting and standing up, causing lots of hip/back pain...neck and shoulder pain due to looking down.” (171). At the end of the second day of testing, Ms. Espindola reported that she felt “exhausted just from all the stuff I did yesterday, and adding more activity today, makes it even worse. I am sure I will be in bed a few days after these two days.” (173). As reiterated in the appeal letter, Ms. Espindola’s typing limitation was important because “computer usage may be required up to 100 percent of the time and may include heavy periods of keyboarding, repetitive motion, and/or eye strain. The occasional fingering and handling set forth by the job browser (Job Browser Pro - by Skilltran - http://www.skilltran.com) used by Standard does not comport with the actual job duties required by DST System.” (503) (emphasis in original). Ms. Espindola put Standard on notice that the outdated vocational information it was using was no longer accurate and thus unreliable. G. Benefits are reinstated because Standard confirms Ms. Espindola’s impaired functional capacity and that its database of vocational information does not accurately reflect how jobs are performed today. On October 25, 2013, Dr. Ronald Fraback performed another medical review for Standard. (163-66). He found evidence of low-grade lupus and, maybe, fibromyalgia. (165). He noted no evidence of synovitis. He did not believe Ms. Espindola’s reported levels of pain and fatigue. In Dr. Fraback’s opinion, Ms. Espindola was capable of sedentary work with occasional reaching, handling, and fingering. (166). Tellingly, Dr. Fraback’s opinion matched, word for word, the vocational information provided to him by Standard. (169). However, that vocational information was based on the Dictionary of Occupational Titles and it was inaccurate. (904). Confirming the prior vocational information was incorrect, Standard performed three additional vocational reviews in response to Ms. Espindola’s appeal. (481-82 (Clendenin review), 900-02 (first Paquette review), 984-99 (second Paquette review)). All of them confirmed that the Dictionary of Occupational Titles information was no Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 17 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 longer accurate. Consistent with modern professional constant computer usage is required. They do not allow for only occasional fingering. (481, 898, 902). This last fact is not in dispute to anyone with credibility. When Standard contacted its own database administrator and presented the Dictionary of Occupational Titles definitions, “He laughed.” (902). Standard overturned the prior termination of benefits in a letter dated December 17, 2013. (421-23). H. Standard determines Ms. Espindola’s condition has not changed and thus she is disabled from any occupation under the terms of the Plan. After determining that the prior decision to terminate benefits was incorrect, Standard continued to investigate whether Ms. Espindola was disabled. Part of this process included obtaining updated medical records. Treatment notes documented Ms. Espindola’s disabling symptoms. Treatment with Dr. Watrous on January 8, 2014, April 8, 2014, and July 8, 2014 showed that over activity exacerbated Ms. Espindola’s joint pain and fatigue. (1383, 67, 1555). Dr. Fraback performed another medical review for Standard on July 14, 2014. (56-59). Dr. Fraback’s opinion was unchanged. “I still see no reason why she could not perform sedentary work with occasional fingering, handling, and keyboarding activities.” (58). On August 4, 2014, the Social Security Administration issued a notice of award letter. Therein, it stated that Ms. Espindola was disabled under its rules since August 2012. (Brehm Dec. at ¶ 2 & Exhibit 1). Because the definition of disability in the Plan was changing from Ms. Espindola’s own occupation to any gainful occupation based on her education, training, and experience, Standard performed another vocational review. (883-87). The August 13, 2014 review was different because its goal was to determine if Ms. Espindola was able to perform any occupation based on Dr. Fraback’s limitations. The conclusion: “[a]fter analysis,…suitable occupations were not identified allowing claimant reentry into the workforce given claimant’s residual functional capacity and Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 18 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 transferable skills. Claimant’s age, education, training, work experience and earnings history were considered.” (886-87). In part, this conclusion was due to the fact that “in today’s production paced organizations the work would include variable and lengthy periods of uninterrupted computer work and keyboarding exceeding claimant’s limitations that require no greater than occasional fingering and handling.” (886). In November 2014, Standard performed the same evaluation, but with a reduced hourly wage requirement for finding gainful employment. (875). The same conclusion was reached: “suitable occupations were not identified allowing claimant reentry into the workforce given claimant’s residual functional capacity and transferable skills.” (876). I. Standard overrides the finding of disability and has Ms. Espindola travel 140 miles to attend an examination but, inexplicably, performs no keyboarding or fine fingering testing. Standard took an extraordinary step: rather than pay Ms. Espindola the any occupation benefits it had determined she was entitled to under the Plan, it questioned the validity of its own reviewing doctor’s opinions. On November 21, 2014, Standard decided to “overrid[e] the any occupation decision….The prudent plan of action is to obtain an [independent medical evaluation] regarding her medical condition.” (1751). Why was this the “prudent” plan? Because “it would be difficult to identify any alternate occupations if [Ms. Espindola] is truly limited to no more than occasional use of her hands for fingering or keyboarding.” (1751). Translation: Standard recognized it needed someone to say Ms. Espindola had frequent use of her hands. In order to provide believability for such a change of opinion (considering all prior reviews disagree with it), Standard recognized an examination was the solution - which logically would include testing of Ms. Espindola’s fingering or keyboarding ability. Initially Standard had difficulty finding a doctor. After reviewing the records, “Dr. [Al] Ferrari has said that he is not interested in taking the case.” (1607). Ultimately, Dr. Douglas Haselwood agreed to travel from Roseville, California to Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 19 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Modesto, California to perform the examination. (1617). This location is about 140 miles from Ms. Espindola. (1608). Because of this delay, Standard’s examination took place on May 13, 2015. In the interim, Ms. Espindola had multiple treatment visits documenting her condition had not changed. Ms. Espindola treated with Dr. Watrous on September 11, 2014 (1393), January 26, 2015 (1336), and May 7, 2015 (1343). The notes from each of these treatments documented that Ms. Espindola continued to have significant trouble with pain, stiffness, fatigue, activity, and walking. At her treatment visit in May 2015, six days before Standard’s examination, it was documented that “[s]ince the last visit the patient feels worse.” (1343). This included continued flares involving Ms. Espindola’s hands, wrist, neck, and shoulders. (1343). Ms. Espindola participated in Standard’s examination. The language used in Dr. Haselwood’s report reflects his personal bias regarding Ms. Espindola’s situation. He wrote that her “persistent perception of fatigue and generalized musculoskeletal pain, often most problematic in the hands, she found it increasingly more difficult to keep up with her telecommuting work schedule, incurred increasing absenteeism and thus opted to stop work on a permanent basis in August 2012.” (1618) (emphasis added). Dr. Haselwood performed only a general physical examination on Ms. Espindola. This meant he limited his examination of Ms. Espindola’s hands to range of motion, grip strength, and fist closure. He did not indicate how he tested these items and offered no objective test findings with regard to any of these parameters - rendering it difficult to evaluate how he determined they were “normal.” (1623). Moreover, Dr. Haselwood did not have Ms. Espindola perform any typing test or any other examination of her ability to use a computer for short or extended durations. In fact, the entire examination - which included an interview - lasted a little over an hour, making it difficult to determine how Dr. Haselwood could opine on Ms. Espindola’s ability to use a computer for durations up to five or six hours. Dr. Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 20 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Haselwood did document that Ms. Espindola “occasionally became somewhat distraught and tearful when describing her symptoms and lifestyle.” (1622). Dr. Haselwood was unable to deny the fact that “Ms. Espindola certainly has some legitimate and objectively documented sources of musculoskeletal discomfort, fatigue, and dysfunction, which could be expected to limit some of her physical functionality, vocational or otherwise.” (1624). Dr. Haselwood went on to state that Ms. Espindola’s lupus was well controlled and that “there is consensus within the disincline of rheumatology that it is an unreasonable stretch of credibility to conclude that the syndrome of fibromyalgia would be expected to permanently preclude any given individual from at least a sedentary level of physical vocational functionality with a reasonable expectations of continuity.” (1624). Dr. Haselwood presented zero evidence supporting this “consensus.” Dr. Haselwood then turned to answering Standard’s question regarding “Ms. Espindola’s ability to use her hands for fine finger movements and fingering due to lupus, fibromyalgia, or any other condition.” (1625). While Dr. Haselwood had the opportunity to test these areas, he failed to perform a single test of fine finger movement, fingering, or manual activities requiring fine hand movements. Thus, without testing, he offered: Acknowledging Ms. Espindola’s affliction with chronic, albeit relatively low-grade lupus, it is reasonable to assume that this may result in varying degrees of discomfort and dysfunction in her hands and wrists even in the absence of active synovitis. This arthralgic symptomatology and dysfunction would reasonably preclude Ms. Espindola from frequent moderate-to-heavy lifting/carrying or constant manual exertion or power gripping. This condition, however, would not preclude Ms. Espindola from manual activities requiring fine hand movements and fingering on a frequent basis or exerting up to 10 pounds occasionally or a negligible amount of force frequently with her hands and wrists. (1625). Dr. Haselwood’s willingness to make this assessment regarding frequent hand movements and fingering seems at odds with his subsequent desire for “measurable Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 21 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 clinical or physical pathophysiology or impairments.” (1625). In fact, it was the lack of measurable impairment that led Dr. Haselwood to opine, “Ms. Espindola has the capacity to perform full-time sedentary vocational functionality with a reasonable expectation of continuity.” (1625). Again, Dr. Haselwood’s opinion seems hypocritical considering his examination did not include any fingering or keyboard testing to obtain the measurements he viewed as necessary to establish impairment. Regarding fibromyalgia, Dr. Haselwood stated, “[s]ince fibromyalgia is a chronic condition based entirely on self-reporting, accurate independent prognostication becomes problematic at best.” (1626). However, this did not stop Dr. Haselwood from prognosticating, “there is no credible reason to conclude that this condition will jeopardize Ms. Espindola’s ability to perform at least a sedentary level of physical vocational functionality in the foreseeable future.” (1626). Based on Dr. Haselwood’s opinions, Standard performed another vocational review. Utilizing the unreliable Dictionary of Occupational Titles’ fingering definitions, Standard determined Ms. Espindola was capable of “three” occupations: claim examiner, claim examiner, and systems analyst. (830). J. Without any typing testing, measurements, or medical documentation of a change in Ms. Espindola’s condition, Dr. Fraback changes his opinion regarding Ms. Espindola’s keyboarding ability. Standard terminates the claim based, in part, on inaccurate information. On July 7, 2015, Dr. Fraback performed his third review of Ms. Espindola’s file. The prior two times he had determined she was limited to occasional fingering, keyboarding, and handling due to her complaints of hand pain. (1527). Standard had determined this limitation rendered her disabled from any occupation under the Plan. Despite acknowledging that Dr. Haselwood’s examination report continued to show Ms. Espindola “complained of widespread pain, especially in her hands, wrists, and hips,” Dr. Fraback changed his opinion regarding fingering, keyboarding, and handling. (1527). Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 22 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Dr. Fraback stated “it is now my opinion that the claimant is capable of full-time sedentary-level work and up to frequent fingering, handling, reaching, and keyboarding.” (1528). Dr. Fraback explained there was only one reason he changed his opinion: “My opinion in regard to her hand function has changed based on the IME report.” (1528). Dr. Fraback did not point to any testing of Ms. Espindola’s fingering, handling, reaching, or keyboarding that was performed during the IME to support a change in his opinion. In a letter dated July 30, 2015, Standard terminated Ms. Espindola’s claim. (393). In support of the denial, Standard cited treatment with “Dr. Kelly,” a “surgery,” and “discomfort at the base of your thumb.” (395). Standard also found support for the denial in “[a]n agreed medial re-examination (AME) done on June 3, 2014 by Dr. Bernicker….” (395). None of this involved Ms. Espindola. On August 17, 2015, Ms. Espindola sent Standard a letter titled “URGENT ATTENTION REQUIRED.” (1726). She explained the information Standard used to support the termination of benefits “is not information that pertains to our client.” (1726). She requested that Standard review the letter and confirm that the adverse decision was based on the information contained in Ms. Espindola’s file. (1726). Standard did nothing in response. K. Ms. Espindola appeals, providing medical evidence, functional capacity testing, and vocational findings that all support her disability. Ms. Espindola appealed on January 21, 2016. She provided updated medical records, a functional capacity evaluation, and a comprehensive vocational evaluation. 1. Updated medical records show no improvement. The additional medical records showed Ms. Espindola treated with Dr. Watrous on August 7, 2015 (1332), September 3, 2015 (1339), September 14, 2015 (1329), September 29, 2015 (1346), November 19, 2015 (1354), January 11, 2016 (1323), and January 20, 2016 (1326). While the visits document additional problems with Ms. Espindola’s knee and stomach, her disabling pain, stiffness, and fatigue remained. Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 23 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 The January 11, 2016 visit went into detail regarding Ms. Espindola’s typing ability. It reported that Ms. Espindola had attempted to type for prolonged periods of time, but after about “10-15 minutes developed pain to hands, wrists and shoulders plus hand cramps which prevented further typing.” (1323). It also discussed why Ms. Espindola had difficulty with sustained sitting, standing, and walking. Further, Dr. Watrous reported, “[f]atigue has been an issues [sic] in regards to ability to focus on completing work, has to take frequent rest or lay down for period of time during the day to complete tasks.” (1323). Dr. Watrous continued to document Ms. Espindola’s limited functional capacity in his January 20, 2016 treatment note, writing: Currently attending PT for chronic hand pain which is aggravated by typing. Dedra’s previous occupation was data base administrator which required 90-100% of job is related to typing. In regards to the ability of typing Dedra is only able to type about 1-3% in an 8 hour work day. Dedra is able to type for only about 10-15 minutes, after this time she develops hand pain, at bilateral MCPs (metacarpophalangeal joints) and PIPs (proximal interphalangeal joints) and occasional DIPs (distal interphalangeal joints), wrists and elbows which become stiff with swelling to joints which prevents further typing and requires about period [sic] of rest but even after resting unable to return to typing due to exacerbation of pain from the attempt of typing. For the rest of the day hand, wrist and elbow pain are evident and causes inability to perform any further typing. (1326). 2. Second Functional Capacity Evaluation finds Ms. Espindola disabled. On December 29, 2015, Ms. Espindola underwent a functional capacity evaluation, the results of which established that she was incapable of meeting the demands of even a sedentary occupation. (1314). Steven Danchik, M.Ed., PT found: Claimant was able to sit for 30 minutes; however was frequently using compensatory movements for relief of pain, stiffness and discomfort during this time and throughout FCE. The claimant was able to perform carrying a box already at waist level with a maximum carrying capacity of 5 pounds, but was not able to lift box from floor. Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 24 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 This was due to pain, limited range of motion and improper body mechanics. As patient was performing the stair mobility activity, considerable bilateral knee pain was observed. Patient was experiencing highest levels of pain while descending. This was causing improper body mechanics with safety concerns. Note: claimant reported very high pain levels during and throughout FCE (7-9/10). As Testing continued, constant and increasing Bilateral Hand pain and Bilateral knee pain were limiting factors. Claimant had difficulty using both right and left hand to grasp and turn a round door knob with strong to moderate resistance. Trying to open water bottle caps and pill containers gives claimant considerable difficulty. Turning a Handicap compliant (door lever) handle with moderate resistance was achieved. All activities requiring claimant to hold hands out; such as handling, feeling, fingering and typing initiated immediate levels of increasing pain. Claimant showed good effort and was very compliant. (1315). 3. Vocational Occupational Analysis finds Ms. Espindola disabled. Linda Hayes, M.Ed. ARP, CRC reviewed medical records and occupational records and concluded that Ms. Espindola was incapable of performing the duties of any occupation. (775-87). Ms. Hayes’ conclusion: It is evident based on the FCE that not only is Ms. Espindola disabled form performing the physical requirements of her own occupation, she is not able to perform the essential physical demands of a sedentary occupation and is therefore disabled from any occupation as well. A transferrable skills analysis was conducted by Bob Black, vocational case manager for the Insurer. Mr. Black identified two alternate occupations for Ms. Espindola. These occupations were Claims Examiner and Systems Analyst. After a thorough review of the essential duties of these occupations, it is evident that they are almost if not identical to the essential job tasks for a Database Administrator, Ms. Espindola’s pre-disability occupation. This is particularly applicable to the amount of keyboarding/ fingering and data entry required for the alternate occupations. Ms. Espindola’s own occupation Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 25 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 requires almost 100% computer usage (see attached job description) and the claims examiner and systems analyst positions required between 80 and 96% computer usage as per the O*Net detailed report and the DOT. The FCE indicated that Ms. Espindola cannot keyboard without pain and stiffness but the Peer Review and IME contradict that; stating that Ms. Espindola could keyboard on a frequent basis. If we were to concede that she is able to tolerate this activity, that would mean typing/ keyboarding between 33% and 66% of the workday. Computer keyboarding, fingering and data entry are required constantly or from 66% to 100% of the workday for Ms. Espindola’s pre-disability occupation and the alternate occupations suggested by the transferrable skills analysis. Most important is the fact that Ms. Espindola is not capable of performing computer keyboarding tasks on even an occasional basis which is supported by her physician’s restrictions and the FCE. Sitting for at least 66% of the workday is also a required task of Ms. Espindola’s pre-disability occupation, as it is for the suggested alternate occupations. She is unable to tolerate this activity as evidenced by the FCE. It has already been accepted and acknowledged by the insurer that Ms. Espindola is disabled from her own occupation and therefore she is unable to perform the essential duties of the alternate occupations. … Ms. Espindola does not meet the minimum physical demand levels for her own occupation or even for sedentary work. (786-87). L. Standard upholds the termination despite Plaintiff’s symptoms being fully consistent with an individual with lupus and fibromyalgia. In response to the appeal, Standard had Dr. Fraback perform another review. As stated in his January 30, 2016 report, Dr. Fraback felt “[t]he findings of the FCE and her treating rheumatologist are somewhat in conflict with the rheumatology IME.” (1307). Dr. Fraback then walked back his opinion slightly with respect to Ms. Espindola’s use of her hands, “I still think that she could do freqient [sic] reaching, handling and fingering if she could alternate her activities throughout the day. She would need the ability to stand and stretch periodically.” (1307). Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 26 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Following Dr. Fraback’s review, Standard hired a rheumatologist in Ohio to perform a paper review of the file. (1275). In addition to his review, Dr. Matthew Burton called Dr. Watrous to discuss Ms. Espindola’s claim. Having treated Ms. Espindola at least 28 times, Dr. Watrous stated, “he doubted very much that Ms. Espindola will ever be able to return to work.” (1282). Dr. Burton did not express his disagreement with this statement during his conversation with Dr. Watrous. Dr. Burton then addressed which diagnoses were supported and the limitations each diagnosis caused Ms. Espindola. Dr. Burton found support for the diagnoses of lupus and fibromyalgia. He noted that joint pain from lupus could occur even in the presence of well-controlled lupus. (1283). In fact, he stated that “[Ms. Espindola’s] complaints of joint pain are out of proportion to what is usually seen in fibromyalgia, but they are not unexpected in individuals who had lupus, even lupus that is well controlled.” (1284). However, Dr. Burton felt these symptoms were treatable and there was no “measurable evidence that the claimant was unable to perform fulltime sedentary work activity.” (1283). Due to a perceived lack of measurable evidence, Dr. Burton’s opinion was that Dr. Haselwood had rightly concluded Ms. Espindola was capable of sedentary work on a computer. However, when subjective symptoms were considered, it was noted that, “while not having any objective findings to prevent her from performing her job duties, [she] might find it difficult to cope with the symptoms of pain and fatigue in order to get through her workday.” (1284). Standard asked Dr. Burton whether Ms. Espindola’s symptom complaints were consistent with the medical documentation in terms of examination and diagnostic test results. Dr. Burton answered: “Yes, the claimant’s complaints of fatigue and pain, sleep disturbance, and interference with activities of daily living are all complaints of an individual with fibromyalgia.” (1284). Dr. Burton also confirmed that, yes, Ms. Espindola’s joint pain were consistent with her well controlled lupus. (1284). Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 27 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 However, while Dr. Burton felt there was a “lack of measureable evidence to support this individual’s inability to work fulltime in a sedentary capacity,” (1285) he also deemed the functional capacity evaluation to be “reliable.” (1284). Following another vocational review (768), Standard upheld the termination of benefits in a letter dated April 20, 2016 (1669). III. POINTS AND AUTHORITIES The Court accepted the Parties’ stipulation to the de novo standard of review. [Docket No. 15]. In a de novo review, the Court undertakes an independent and thorough inspection of the administrator’s decision without affording any deference at all to the plan administrator’s findings.1 As a result, the Court should evaluate whether Ms. Espindola was disabled within the terms of the Plan, and after evaluating the persuasiveness of conflicting evidence, decide which was more likely to be true.2 It is Ms. Espindola’s burden to show an entitlement to benefits under the Plan.3 To prevail in doing so, she needs to prove it was “more likely than not” that she was disabled under the terms of the Plan.4 A. Ms. Espindola’s self-reported symptoms, when combined with her diagnosis, work history, treating physician statements, functional capacity evaluation results, and award of Social Security disability benefits are more than sufficient to meet her burden of proof. Contrary to Standard’s assertions, it is proper to base a disability determination on a patient’s self-reported symptoms if they are credible and consistent with the 1 Silver v. Exec. Car Leasing Long-Term Disability Plan, 466 F.3d 727, 728 (9th Cir. 2006). 2 Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc); Muniz v. Amec Const. Management, Inc., 623 F.3d 1290, 1295-96 (9th Cir. 2010). 3 Muniz, 623 F.3d at 1296; Jahn-Derian v. Metro. Life Ins. Co., 2016 WL 1355625 at *5-6 (C.D. Cal. Mar. 31, 2016). 4 Armani v. Nw. Mut. Life Ins. Co., 840 F.3d 1159, 1163 (9th Cir. 2016); Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (defining “preponderance of the evidence” as “more likely than not”). Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 28 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 diagnosis.5 “Objective” or “measurable” evidence of disability is not required. Credible evidence of a claimant’s symptoms, based on her own reports and the medical reports of examining physicians is more than sufficient to establish disability.6 The severity of symptoms, so long as they are consistent with the prevailing diagnosis and are supported by the other evidence, will, of necessity, be established by self-reported symptoms and physical complaints.7 It is sufficient that the preponderance of the evidence suggests that Ms. Espindola’s subjective complaints derive from her medical conditions and the symptoms associated with those conditions.8 Herein, there can be no meaningful dispute that the pain and fatigue Ms. Espindola reported are well known to be associated with her diagnosis of lupus and fibromyalgia. When Ms. Espindola began to experience limitations due to these symptoms, she sought multiple workplace accommodations to be able to continue working - strong evidence that, but for the severity of her symptoms, she would return to work. Based on over two dozen treatment visits spanning multiple years, Dr. Watrous’ opinion was that Ms. Espindola was disabled by these symptoms. This was also the finding of Dr. Fraback prior to Standard’s medical examination (after which he only slightly modified his opinion). Two “reliable” objective functional capacity evaluations showed Ms. Espindola was disabled by her symptoms. The surveillance corroborated Ms. Espindola’s statements about her level of activity. The Social 5 See e.g. Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 905-06 (9th Cir. 2016); Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 645-6 (7th Cir. 2007); Hawkins v. First Union Corp., 326 F.3d 914, 919 (7th Cir. 2003); Marcus v. Califano, 615 F.2d 23, 27 (2nd Cir. 1979); Palmer v. Standard Ins. Co., 994 F. Supp. 1221, 1233-4 (D.C. Oregon 1998). 6 Marcus, 615 F.2d at 27; see also, Palmer, 994 F. Supp. at 1233-1234. 7 E.g. Hawkins, 326 F.3d at 919; Diaz, 499 F.3d at 645-6; Bledsoe v. Metro. Life Ins., 90 F. Supp. 3d 901, 913 (C.D. Cal. 2015); Gallegos v. Prudential Ins. Co. of Am., 2017 WL 2418008 at *9-11 (N.D. Cal. June 5, 2017); Leetzow v. Metro. Life Ins. Co., 2016 WL 7324092 at *9 (C.D. Cal. Dec. 5, 2016); Jahn-Derian v. Metro. Life Ins. Co., 2016 WL 1355625 at *7 (C.D. Cal. Mar. 31, 2016). 8 Bledsoe, 90 F. Supp. 3d at 913; Gallegos, 2017 WL 2418008 at *9-11. Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 29 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Security administration found Ms. Espindola’s symptoms to disable her from any occupation. Even Drs. Burton and Haselwood felt “while not having any objective findings to prevent her from performing her job duties, [she] might find it difficult to cope with the symptoms of pain and fatigue in order to get through her workday.” (1284). They both agreed that these symptoms can occur without the presence of “objective” indicators. Like with all claims based on subjective symptoms, the lack of objective evidence alone was not a valid basis for terminating Ms. Espindola’s disability benefits.9 A triumvirate of recent lupus cases out of California dismantle Standard’s only state reason for terminating benefits: a lack of objective evidence of disability.10 Ms. Espindola asks this Court to do the same. B. Standard offered no evidence of a significant change in Ms. Espindola’s condition when recanting its previous findings of disability. After several years of finding Ms. Espindola unable to perform her sedentary occupation, and any other occupation, Standard’s termination of benefits raises the question: what changed? Logically, Standard should be able to point to medical evidence showing improvement, not a lack of degeneration or a stable condition.11 9 Jahn-Derian, 2016 WL 1355625 at *7; citing Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 678 (9th Cir. 2011). 10 Bledsoe, 90 F. Supp. 3d at 913; Gallegos, 2017 WL 2418008 at *9-11; Yancy v. United of Omaha Life Ins. Co., 2015 WL 9311729 at *17 (C.D. Cal. Dec. 18, 2015). 11 See Saffon v. Wells Fargo & Company Long Term Disability Plan, 522 F.3d 863, 871 (9th Cir. 2008) (“In order to find [a claimant] no longer disabled, one would expect the [medical records] to show and improvement, not a lack of degeneration”); McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586, 589 (8th Cir. 2002) (“[U]nless information available to an insurer alters in some significant way, the previous payment of benefits is a circumstance that must weigh against the propriety of an insurer’s decision to discontinue those payments.”); Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1330 (11th Cir. 2001) (once a claimant is determined to be disabled; if there is no evidence of improvement this tends to show that termination was in error and claimant was still disabled); Bledsoe, 90 F. Supp. 3d at 910; Porco v. Prudential Ins. Co. of Am., 682 F. Supp. 2d 1057, 1080-81 (C.D. Cal. 2010); Gallegos, 2017 WL 2418008 at *7 (“The Court then presumes Prudential relied on a significant change in the circumstances of her condition inorder to recant its previous (Footnote Cont’d on Following Page) Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 30 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Standard cannot do so. This does not mean the burden of proof has shifted to Standard, or that Standard must forever pay benefits.12 But it is a significant fact weighing against the propriety of Standard’s decision. C. Ms. Espindola’s absenteeism precludes consistent work capacity. Ms. Espindola and her doctors noted multiple times that her symptoms fluctuated - further precluding her from consistently working. (102, 265, 295, 368, 1326, 1343, 1618). Standard never grappled with this aspect of Ms. Espindola’s claim. However, courts have recognized that the unpredictability of lupus symptoms is a valid reason for precluding an ability to work reliably.13 Ms. Espindola asks the Court to consider all her impairments and to find them to satisfy her burden to establish disability under the Plan. IV. CONCLUSION For the foregoing reasons, Ms. Espindola asks the Court to correct Standard’s mistake, find her disabled under the terms of the Plan, award her retroactive benefits under the Plan, plus applicable interest, and allow her attorneys to bring a motion for attorneys’ fees and costs as allowed under ERISA. DATED: June 9, 2017 KANTOR & KANTOR, LLP By: /s/ Brent Dorian Brehm Brent Dorian Brehm Attorneys for Plaintiff, Dedra Espindola (Footnote Cont’d From Previous Page) approvals and expects Prudential to provide some evidence of Gallegos’ medical progression at the time of its termination of LTD benefits); LaVertu v. Unum Life Ins. Co. of Am., 2014 WL 1224736 at *13 (C.D. Cal. March 25, 2014) (“Given that there is no evidence of improvement in Plaintiff’s condition, Unum’s decision to terminate benefits is therefore untenable.”). 12 Muniz, 623 F.3d at 1296 & n.3; McOsker, 279 F.3d at 589; Gallegos, 2017 WL 2418008 at *7. 13 Gallegos, 2017 WL 2418008 at *7 (citing cases); see also Leetzow v. Metro. Life Ins. Co., 2016 WL 7324092 at * 12 (C.D. Cal. Dec. 5, 2016) (discussing absenteeism). Case 2:16-cv-01301-JAM-CKD Document 23 Filed 06/09/17 Page 31 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 Glenn R. Kantor (SBN: 122643) E-mail: gkantor@kantorlaw.net Alan E. Kassan (SBN: 113864) E-mail: akassan@kantorlaw.net Brent Dorian Brehm (SBN: 248983) E-mail: bbrehm@kantorlaw.net KANTOR & KANTOR, LLP 19839 Nordhoff Street Northridge, CA 91324 Telephone: (818) 886-2525 Facsimile: (818) 350-6272 Attorneys for Plaintiff, DEDRA ESPINDOLA UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DEDRA ESPINDOLA, Plaintiff, vs. STANDARD INSURANCE COMPANY and DST SYSTEMS, INC., LONG TERM DISABILITY PLAN, Defendants. CASE NO. 2:16-cv-01301-JAM-CKD PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS Date: August 22, 2017 Time: 1:30 p.m. Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 1 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 Statement of Fact Evidence Citation The DST Systems, Inc., Long Term Disability Plan provides Dedra Espindola with disability benefits if she meets the definition of disability and meets all other requirements. 1-521 The relevant definition of disability is: “During the Any Occupation Period you are required to be Disabled from all occupations. You are disabled from all occupations if, as a result of Physical Disease, Injury, Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of Any Occupation. Any Occupation means any occupation or employment which you are able to perform, whether due to education, training, or experience, which is available at one or more locations in the national economy and in which you can be expected to earn of a percentage of your Indexed Predisability Earnings within twelve months following your return to work, regardless of whether you are working in that or any other occupation as follows: Class 1: at least 80% Class 2: 66 2/3% Material Duties means the essential tasks, functions and operations, and the skills, abilities, knowledge, training and experience, generally required by employers from those engaged in a particular occupation that cannot be reasonably 14, 1669-70 1 These numbers refer to the bates stamped numbers on the claim file, with the omission of the prefix “STND 16-03288-00”. These references are to documents the Parties have asked to be filed with the court pursuant to stipulation. [Docket No. 22]. Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 2 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 modified or omitted. In no event will we consider working an average of more than 40 hours per week to be a Material Duty. Ms. Espindola was a database administrator for DST - where she worked since December 2000. 667 Her occupation required her to construct, tune, and restructure queries to ensure optimal data access and response. It was a challenging position requiring long hours of computer work and continuous typing. 498, 566, 1242 Before her long term disability began, Ms. Espindola had a long and complicated history of idiopathic thrombocytopen purpura (“ITP”) and, more recently, lupus. She experienced flares and exacerbations through the years prior to her disability. In 2004, DST accommodated her medical condition by allowing her to start telecommuting from her home three days a week. In 2006, DST further accommodated Ms. Espindola by allowing her to telecommute on the other two days on an as-needed basis. 498 By 2008, DST had agreed to allow Ms. Espindola to work from home on a full time basis as an ADA accommodation. 1185 Despite these accommodations, by April 6, 2012, Ms. Espindola could no longer perform the duties of her occupation. 498, 1185 At the end of spring 2012, Ms. Espindola was consistently experiencing fatigue, weakness, and joint pain to her hips, elbows and wrists. She was also experiencing hair loss, frequent headaches, and constant bruising. 499 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 3 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 While she returned to work in May 2012, treatment notes from Dr. Daniel Watrous, rheumatology and clinical immunology, from May 23, 2012 showed symptoms of joint and muscle pain, fatigue, rashes, and some thinning of Ms. Espindola’s hair. 342 Without abatement in her disabling symptoms, Ms. Espindola had to take a second FMLA leave from June to July 2012. 499, 1185 On June 9, 2012, Ms. Espindola treated with Dr. Susan Lemon, rheumatology. 684 In addition to the above-mentioned symptoms, Ms. Espindola experienced nonrestorative sleep (despite nine hours of sleep) and lupus flairs causing her to miss “sporadic days at work due…. generally three times monthly.” 295 By the time Ms. Espindola treated with Dr. Watrous again, on June 20, 2012, treatment notes showed she “feels worse.” 337 She was aching and sore all over. Her wrists and hips were tender with exercise. Her worst pain was in her elbows, wrists, hands, hips, and feet. 337 A return visit to Dr. Watrous on July 5, 2012 showed that Ms. Espindola “feels better.” 334 This corresponded with Ms. Espindola attempting to return to work. 499 Based on Dr. Watrous’ July 5, 2012 notes, it is not surprising this attempt was unsuccessful. He documented Ms. Espindola’s stiffness was exacerbated by activity and over- activity, while alleviated by rest. 334 A disability form Dr. Watrous completed for Ms. Espindola 368 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 4 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 also showed activity “exacerbated” her joint and muscle pains. After only a few days back on the job, Ms. Espindola’s symptoms began to worsen. Treatment notes from July 10, 2012 reported three days earlier Ms. Espindola had started getting fevers, migraines, body aches, and fatigue. The joint pain was mild to moderate “and worsening for a few days after a rapid onset.” 328 Ms. Espindola described her lupus and ITP symptoms as “fatigue, joint pain, muscle pain, migraines, bruising, rash, hair loss.” 683 Dr. Watrous’ treatment notes from July 24, 2012 again reflected that activity exacerbated Ms. Espindola’s symptoms. 325 His notes from August 14, 2012, also showed increased symptoms. Dr. Watrous stated, “Continued pain to joints with increased amount of stiffness, having weakness to hands and arms” and “since the last visit the patient feels worse.” 320 Dr. Watrous gave Ms. Espindola an off work note. 321 In September 2012, at Ms. Espindola’s three month follow-up visit with Dr. Lemon, it was noted that she continued to have fatigue and pain in her elbows, wrist, and hips. Dr. Lemon noted, “[s]he has not had much meaningful relief of her articular symptoms with the addition of Imuran or being off of work.” 298 In October 2012, Ms. Espindola was put on Personal Leave of Absence by DST. 499 Treatment with Dr. Watrous on October 9, 2012, showed Ms. 315 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 5 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 Espindola’s pain, stiffness, and fatigue were all worse. On October 12, 2012, Dr. Watrous filled out an Attending Physician’s Statement for Standard. Therein he noted that Ms. Espindola was unable to work due to lupus related fatigue and joint pain. 366 The following month, Dr. Watrous treated Ms. Espindola and noted increased fatigue and continued joint pain. Ms. Espindola had a weak grip and, at times, these symptoms made completing activities of daily living (ADL) difficult. 210 Dr. Watrous also completed ADA paperwork for DST (titled “Interactive Process Questionnaire”). 221-22 Herein, Dr. Watrous stated that Ms. Espindola could not perform the duties of her occupation and set the following restrictions: ~ Walking limited to one city block; ~ Sitting limited to ten minutes; ~ Standing limited to 10-20 minutes; ~ Unable to carry any item greater than 5-10lbs; and ~ Limited computer use. 1185-86 Ms. Espindola made a claim to Standard for disability benefits (STD and LTD). One of the first steps Standard took was performing a vocational review. On November 18, 2012, Standard utilized a computer program - Job Browser Pro - to determine the physical demands of Ms. Espindola’s occupation. The program draws its information from the Dictionary of Occupational Title (DOT). 1239-40 Of note, the program stated that Ms. Espindola’s occupation required only occasional fingering/typing. 1239 On December 6, 2012, Ms. Espindola spoke with Standard. 635 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 6 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 She informed them that medications were not helping. She continued to experience headaches, rashes, dry itchy skin, fatigue, and joint pain. She explained her occupation required her to sit all day and type, which she could not do as “her hands and hips were hurting too badly to continue.” She was also feeling “extreme fatigue and often finds herself needing to lie down and sleep.” 635 These symptoms were present despite being on Cymbalta - “which had helped.” 635 She expressed she did not feel depressed and definitely did not feel depression had anything to do with her inability to work. 635 The same day Standard performed a medical review. Standard’s medical reviewer determined that “impairment is reasonably supported from the claimants CWD [cease work date] to the present and beyond for full time work due to claimant’s ongoing symptoms of lupus and recent medication adjustments.” 1663 Standard made a claim decision: “Based on the available medical documentation, it is this analyst’s recommendation to approve this claim for LTD benefits. Claimant is suffering a number of symptoms associated with her diagnosis of lupus that would restrict her from being able to perform the Material Duties of her Own Occupation with pace and persistency.” 1663 Six days later, Standard penned a letter explaining its disability findings. The December 12, 2012 letter stated, “We 386 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 7 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 are pleased to inform you that your Long Term Disability (LTD) claim with Standard Insurance Company (The Standard) has been approved. In addition, based on the information in your claim file, your claim will close on January 14, 2013.” The same day, Standard sent Ms. Espindola a second letter which stated it “explains the approval and termination” of benefits. 384 However, neither letter explained why Standard had determined “Dedra Espindola should be able to return to work on January 15, 2013.” 384 The only information Ms. Espindola had for Standard’s decision to terminate her claim was the vague statement “[t]he most current information we have indicates that you should be able to return to work on January 15, 2013.” 386 Standard stated that, if Ms. Espindola was not able to return to work after July 14, 2013, she was to provide updated medical records. 386 On January 8, 2013, Dr. Watrous’ office wrote a letter stating that Ms. Espindola “will be off work due to illness until April 8, 2013.” 213 The note was given to Ms. Espindola the following day when Dr. Watrous treated Ms. Espindola. The treatment record shows that Ms. Espindola was having trouble with pain, stiffness, fatigue, activity, and walking. She was also having a degree of trouble with sleeping. 1391 On January 10, 2013, Ms. Espindola wrote DST’s HR 216 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 8 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 Department a letter informing it that the severe symptoms of her disease were keeping her from returning to work. She wrote: “My Dr. is continuing to keep me off work. Unfortunately, this illness is showing no signs of improvement.  This breaks my heart as DST Output has treated me so well & from what I understand, my employment with you will end in February.” As she later expressed, Ms. Espindola had worked for DST for over 12 years. All her performance evaluations noted she met or exceeded all expectations of her employer. She was so very thankful that they had been willing to accommodate her disability throughout the years. 499 Ms. Espindola knew she was making over $85,000 a year working from home. Even without her medical conditions, she knew there was little chance she would be able to find another job like the one she had. Yet, she had no choice but to leave because she was not able to perform the duties required of her. 499-500 On January 11, 2013, Dr. Watrous sent Standard a completed copy of its Physician’s Statement of Disability form. Therein, he assessed Ms. Espindola’s joint pain, fatigue, and weakness left her with only “occasional” functional work capacity (up to 2.5 hours in an eight hour day). 214-15 Dr. Watrous also documented that Ms. Espindola had shown a “poor response to treatment.” 215 On January 25, 2013, Ms. Espindola completed Standard’s 269 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 9 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 Activities and Capabilities Questionnaire. Therein, she noted that there was no improvement in her condition, which resulted in continued inability to work. She noted her husband made her meals, did the household work, and assisted with child supervision depending on her level of fatigue and pain. 270 Her husband also had to perform long distance driving due to her hand, wrist, and hip pain this caused. 271 With regard to work and rehabilitation, she was “hopeful the pain will go away & I can return to work,” but had no idea when that might happen. 272 Ms. Espindola treated with Dr. Verma early in February, who noted “[s]he continues to have periodic flareups and she is not able to do the job which she was able to do.” 102 The following day, treatment notes from Dr. Watrous documented that Ms. Espindola “feels worse.” 178 Pain, fatigue, stiffness, and trouble with activity were all worse. Dr. Watrous’ office gave Ms. Espindola a letter that stated, “[p]ain can fluctuate at times, but having frequent flares that make it difficult to perform duties required by her job description.” 265 He supported disability until Ms. Espindola’s disease was better controlled. 265 On February 19, 2013, Ms. Espindola’s internist, Dr. Raman Verma, wrote to Standard. He noted he had treated Ms. Espindola since 2006 and had seen her condition through the diagnosis of lupus and fibromyalgia. He documented that she 266 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 10 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 was experiencing severe joint and muscle pains. He also wrote: “She has been taking the Imuran, Plaquenil, Prednisone and Cymbalta and in spite of that she continues to have severe pain and sometimes swelling of the joints with the morning stiffness and she is not able to work or do the activity of daily living without hurting.” Dr. Verma confirmed that he had advised Ms. Espindola to stop working because work can “make her condition worse.” (266). He advised Ms. Espindola to apply for permanent disability because “her condition does not seem that it will be curable.” 266 On March 21, 2013, Ms. Espindola treated with Dr. Watrous. Treatment notes documented her condition was not improved and she was “having difficult time even cutting meat on salad due to increased pain to hands. Having to take naps daily due to increased fatigue to even perform ADLs.” 147 On March 24, 2013, Standard had Dr. Joji Kappes perform the first paper medical review in the file. Dr. Kappes opinion was that Ms. Espindola’s “[lupus] under good control with immune suppression” due to medication. 256 Despite this finding, Dr. Kappes admitted that Ms. Espindola had ongoing symptoms of pain and fatigue. 256 This did not equate to Ms. Espindola being able to return to work. Rather, Dr. Kappes opinion was that Ms. Espindola had significant limitations and restrictions applicable into the end of 2012. When asked if those limits continued to the present, Dr. Kappes stated, “I believe limitations are applicable to the 256 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 11 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 present, and she has followup [sic] scheduled 4/8/13.” Dr. Kappes recommended a “Rheumatologist and Connective Tissue Disease Questionnaire” be completed by Dr. Watrous. 256 Among other symptoms, at the April 8, 2013 treatment session, Dr. Watrous documented that Ms. Espindola’s worst joint pain was in her wrists and hands. Joint pain, aching, soreness, and fatigue were present. 235 Dr. Watrous completed an Attending Physician’s Statement that day (this was not a Standard form or the form requested by Dr. Kappes). Therein, he documented Ms. Espindola’s continued disability due primarily to lupus and, secondarily, fibromyalgia. The joint pain and fatigue she experienced limited her ability to lift, sit, stand, and perform fine finger movements (typing). 613 Dr. Watrous’ treatment notes from May 2013 also supported continued disability. 156 Because Ms. Espindola was having difficulty getting Standard’s form completed, on May 23, 2013, she and Standard agreed to suspend the deadline for Standard to render a decision. 571 However, by that time Standard had already determined surveillance and a full background investigation was necessary. The surveillance report was issued on May 28, 2013 for surveillance conducted on May 16, 17, and 18, 2013. 589 The three days of surveillance were conducted on a Thursday, Friday, and Saturday. On Thursday and Saturday, Ms. Espindola did not leave the house. On the Friday, she 594-95 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 12 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 was a passenger in a vehicle that picked her child up from school and went to the bank and a clothing store. The closing memo from Standard’s SIU stated, “During three days of surveillance, Ms. Espindola was observed briefly outside her residence.” 601 On June 5, 2013, Standard had its paper reviewer, Dr. Kappes, perform another review. Dr. Kappes’ opinion was that Ms. Espindola’s lupus had not gotten worse (it had been disabling), and the fibromyalgia was under treatment with Lyrica “and hence should not preclude a sedentary-level occupation.” 255 On July 1, 2013, Ms. Espindola called Standard. Standard claimed that Ms. Espindola had not provided written proof of disability. Ms. Espindola explained that she was unable to do her occupation, in part, because it required her to continually type. This typing was too painful for Ms. Espindola. 583 Standard disagreed about the typing requirement, as it had determined only occasional typing was required for the occupation. Due to the discrepancy, Standard invited Ms. Espindola to submit information regarding her job duties. 584 Ms. Espindola provided the information along with a letter dated July 4, 2013 (faxed July 10, 2013). 566 The DST job description she provided showed that computer usage may be required up to 100% of the time and may include heavy periods of keyboarding. 1237 Ms. Espindola explained: “As I mentioned to you previously, it is difficult to even eat a 566 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 13 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 meal without hand, wrist & elbow pain. I am not sure how I would even attempt typing 8 hours a day. I attended college to get my degree in this field and have been doing this for 12+ years, it saddens me to not be able to do this.” A few days later, Ms. Espindola treated with Dr. Watrous. The medical records reflected continuation of the previously disabling symptoms. 159-60 Based on the examination findings, Dr. Watrous’ office provided another letter. It stated, “No change or improvement in symptoms compared to previous exam, limited in functional capacity to perform work due to joint pains and weakness. We support continued disability.” 223 On July 16, 2013, an attorney from Kantor & Kantor contacted Standard and discussed finalizing Ms. Espindola’s appeal. 564 A subsequent letter confirmed the appeal was due by September 30, 2013. 539 On September 27, 2013, with the assistance of Kantor & Kantor, Ms. Espindola submitted an appeal of the termination of her benefits. The appeal included medical records, employer records (showing exemplary work performance and employer satisfaction), results from a two-day Functional Vocational Examination, seven letters of support from co- workers, friends, and family, medical literature on lupus and fibromyalgia, and medical literature regarding the side effects of the medications Ms. Espindola was taking. 497-504 The two day Functional Vocational Examination confirmed 170-77 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 14 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 via testing what all the other information provided showed: Ms. Espindola continued to be disabled. The examination took place on July 23 & 24, 2013. By noon, Ms. Espindola reported that, even after a break, she felt she was unable to complete the test because of pain and fatigue. However, she pushed herself and did complete both days of testing. 173 The examination revealed the following limitations:  Combination of standing and walking, maximum of 7 minutes;  Standing: maximum of 20 minutes;  Sitting Low (29"-height table): maximum of 25 minutes while performing an intermittent writing activity;  Waist Level Reaching: maximum of 11 minutes;  Chest Level Reaching: maximum of one minute;  Continuous Writing: maximum of 3 minutes;  Intermittent Writing: maximum of 50 minutes (using a marker);  Lifting with each hand: 5 to 7 lbs. with pain; and Grip strength was reported at a maximum of 25 lbs. of pressure, with pain. 171-72 A typing test performed that day, showed Ms. Espindola was unable to complete even four minutes of typing (although her typing speed was adequate over that time). 177 Ms. Espindola reported that the testing left her with body aches and pain due to “too much movement of hands, wrists, elbows. Too much sitting and standing up, causing lots of hip/back pain...neck and shoulder pain due to looking down.” 171 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 15 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 At the end of the second day of testing, Ms. Espindola reported that she felt “exhausted just from all the stuff I did yesterday, and adding more activity today, makes it even worse. I am sure I will be in bed a few days after these two days.” 173 As reiterated in the appeal letter, Ms. Espindola’s typing limitation was important because “computer usage may be required up to 100 percent of the time and may include heavy periods of keyboarding, repetitive motion, and/or eye strain. The occasional fingering and handling set forth by the job browser (Job Browser Pro - by Skilltran - http://www.skilltran.com) used by Standard does not comport with the actual job duties required by DST System.” 503 (emphasis in original) On October 25, 2013, Dr. Ronald Fraback performed another medical review for Standard. 163-66 He found evidence of low-grade lupus and, maybe, fibromyalgia. 165 He noted no evidence of synovitis. He did not believe Ms. Espindola’s reported levels of pain and fatigue. In Dr. Fraback’s opinion, Ms. Espindola was capable of sedentary work with occasional reaching, handling, and fingering. 166 Dr. Fraback’s opinion matched, word for word, the vocational information provided to him by Standard. 169 However, that vocational information was based on the Dictionary of Occupational Titles (which was accessed through Standard’s Skilltran database) and it was inaccurate. 904 Confirming the prior vocational information was incorrect, 481-82 (Clendenin Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 16 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 Standard performed three additional vocational reviews in response to Ms. Espindola’s appeal. review), 900-02 (first Paquette review), 984-99 (second Paquette review) All of them confirmed that the Dictionary of Occupational Titles information was no longer accurate. Consistent with almost all modern sedentary professional occupations frequent to constant computer usage is required. They do not allow for only occasional fingering. 481, 898, 902 When Standard contacted its own database administrator and presented the Dictionary of Occupational Titles definitions, “He laughed.” 902 Standard overturned the prior termination of benefits in a letter dated December 17, 2013. 421-23 Treatment notes continued to document Ms. Espindola’s disabling symptoms. Treatment with Dr. Watrous on January 8, 2014, April 8, 2014, and July 8, 2014 all showed that Ms. Espindola’s joint pain and fatigue was exacerbated by over activity. 1383, 67, 1555 Dr. Fraback performed another medical review for Standard on July 14, 2014. 56-59 Dr. Fraback’s opinion was unchanged. “I still see no reason why she could not perform sedentary work with occasional fingering, handling, and keyboarding activities.” 58 He saw little evidence of active lupus and speculated her symptomology “may be related to fibromyalgia.” 58 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 17 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 On August 4, 2014, the Social Security Administration issued a notice of award letter. Therein, it stated that Ms. Espindola was disabled under its rules since August 2012. Brehm Dec. at ¶ 2 & exhibit 1 Because the definition of disability in the Plan was changing from Ms. Espindola’s own occupation to any gainful occupation based on her education, training, and experience, Standard performed another vocational review. 883-87 The August 13, 2014 review was different than the prior reviews because its goal was to determine if Ms. Espindola was able to perform any occupation based on Dr. Fraback’s limitations. The conclusion: “[a]fter analysis,…suitable occupations were not identified allowing claimant reentry into the workforce given claimant’s residual functional capacity and transferable skills. Claimant’s age, education, training, work experience and earnings history were considered.” 883-87 In part, this conclusion was due to the fact that “in today’s production paced organizations the work would include variable and lengthy periods of uninterrupted computer work and keyboarding exceeding claimant’s limitations that require no greater than occasional fingering and handling.” 886 In November 2014, Standard performed the same evaluation, but with a reduced hourly wage requirement for finding gainful employment. 875 The same conclusion was reached: “suitable occupations were not identified allowing claimant reentry into the workforce given claimant’s residual functional capacity and transferable 876 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 18 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 skills.” Rather than pay Ms. Espindola the any occupation benefits Standard had determined she was entitled to under the Plan, it questioned the validity of its own reviewing doctor’s opinions. On November 21, 2014, Standard decided to “overrid[e] the any occupation decision….The prudent plan of action is to obtain an [independent medical evaluation] regarding her medical condition.” 1751 Standard stated “it would be difficult to identify any alternate occupations if [Ms. Espindola] is truly limited to no more than occasional use of her hands for fingering or keyboarding.” 1751 Initially Standard had difficulty finding a doctor. After reviewing the records, “Dr. [Al] Ferrari has said that he is not interested in taking the case.” 1607 Ultimately, Dr. Douglas Haselwood agreed to travel from Roseville, California to Modesto, California to perform the examination. 1617 This location is about 140 miles of Ms. Espindola. 1608 Ms. Espindola treated with Dr. Watrous on September 11, 2014, January 26, 2015, and May 7, 2015. The notes from each of these treatments documented that Ms. Espindola continued to have significant trouble with pain, stiffness, fatigue, activity, and walking. 1393, 1336, 1343 At her treatment visit in May 2015, six days before Standard’s examination, it was documented that “[s]ince the last visit the patient feels worse.” 1343 This included continued flares involving Ms. Espindola’s 1343 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 19 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 hands, wrist, neck, and shoulders. Ms. Espindola then participated in Standard’s examination on May 13, 2015. In Dr. Haselwood’s report he wrote that Ms. Espindola’s “persistent perception of fatigue and generalized musculoskeletal pain, often most problematic in the hands, she found it increasingly more difficult to keep up with her telecommuting work schedule, incurred increasing absenteeism and thus opted to stop work on a permanent basis in August 2012.” 1618 Significantly, Dr. Haselwood performed a general physical examination on Ms. Espindola. This meant he limited his examination of Ms. Espindola’s hands to range of motion, grip strength, and fist closure. He did not indicate how he tested these items and offered no objective test findings with regard to any of these parameters - rendering it difficult to evaluate how he determined they were “normal.” 1623 Dr. Haselwood did not have Ms. Espindola perform any typing test or any other examination of her ability to use a computer for short term or extended durations. In fact, the entire examination - which included an interview - lasted a little over an hour, making it difficult to determine how Dr. Haselwood could opine on Ms. Espindola’s ability to use a computer for durations up to five or six hours. Dr. Haselwood did document that Ms. Espindola “occasionally became somewhat distraught and tearful when describing her symptoms and lifestyle.” 1622 Dr. Haselwood was unable to deny the fact that “Ms. Espindola certainly has some legitimate and objectively 1624 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 20 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 documented sources of musculoskeletal discomfort, fatigue, and dysfunction, which could be expected to limit some of her physical functionality, vocational or otherwise.” Dr. Haselwood went on to state that Ms. Espindola’s lupus was well controlled and that “there is consensus within the disincline of rheumatology that it is an unreasonable stretch of credibility to conclude that the syndrome of fibromyalgia would be expected to permanently preclude any given individual from at least a sedentary level of physical vocational functionality with a reasonable expectations of continuity.” 1624 Dr. Haselwood then turned to answering Standard’s question regarding “Ms. Espindola’s ability to use her hands for fine finger movements and fingering due to lupus, fibromyalgia, or any other condition.” 1625 While Dr. Haselwood had the opportunity to test these areas, he failed to perform a single test of fine finger movement, fingering, or manual activities requiring fine hand movements. Thus, without testing, he offered: Acknowledging Ms. Espindola’s affliction with chronic, albeit relatively low-grade lupus, it is reasonable to assume that this may result in varying degrees of discomfort and dysfunction in her hands and wrists even in the absence of active synovitis. This arthralgic symptomatology and dysfunction would reasonably preclude Ms. Espindola from frequent moderate-to-heavy lifting/carrying or constant manual exertion or power gripping. This condition, however, would not preclude Ms. Espindola from manual activities requiring fine hand movements and fingering on a 1625 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 21 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 frequent basis or exerting up to 10 pounds occasionally or a negligible amount of force frequently with her hands and wrists. Dr. Haselwood’s willingness to make this assessment regarding frequent hand movements and fingering seems at odds with his subsequent desire for “measurable clinical or physical pathophysiology or impairments.” 1625 In fact, it was the lack of measurable impairment that led Dr. Haselwood to opine, “Ms. Espindola has the capacity to perform full-time sedentary vocational functionality with a reasonable expectation of continuity.” 1625 Regarding fibromyalgia, Dr. Haselwood stated, “[s]ince fibromyalgia is a chronic condition based entirely on self- reporting, accurate independent prognostication becomes problematic at best.” 1626 However, this did not stop Dr. Haselwood from opining, “there is no credible reason to conclude that this condition will jeopardize Ms. Espindola’s ability to perform at least a sedentary level of physical vocational functionality in the foreseeable future.” 1626 Based on Dr. Haselwood’s opinions, Standard performed another vocational review. Utilizing the unreliable Dictionary of Occupational Titles’ fingering definitions, Standard determined Ms. Espindola was capable of “three” occupations: claim examiner, claim examiner, and systems analyst. 830 On July 7, 2015, Dr. Fraback performed his third review of Ms. Espindola’s file. The prior two times he had determined 1527 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 22 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 she was limited to occasional fingering, keyboarding, and handling due to her complaints of hand pain. Standard had determined this limitation rendered her disabled from any occupation under the Plan. Despite acknowledging that Dr. Haselwood’s examination report continued to show Ms. Espindola “complained of widespread pain, especially in her hands, wrists, and hips,” Dr. Fraback changed his opinion regarding fingering, keyboarding, and handling. 1527 Dr. Fraback stated “it is now my opinion that the claimant is capable of full-time sedentary-level work and up to frequent fingering, handling, reaching, and keyboarding.” 1528 Dr. Fraback explained there was only one reason he changed his opinion: “My opinion in regard to her hand function has changed based on the IME report.” 1528 In a letter dated July 30, 2015, Standard terminated Ms. Espindola’s claim. 393 In support of the denial, Standard cited treatment with “Dr. Kelly,” a “surgery,” and “discomfort at the base of your thumb.” (395). Standard also found support for the denial in “[a]n agreed medial re-examination (AME) done on June 3, 2014 by Dr. Bernicker….” 395 On August 17, 2015, Ms. Espindola sent Standard a letter titled “URGENT ATTENTION REQUIRED.” 1726 She explained the information Standard used to support the termination of benefits “is not information that pertains to our client.” 1726 She requested that Standard review the letter and confirm that 1726 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 23 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 the adverse decision was based on the information contained in Ms. Espindola’s file. Ms. Espindola appealed on January 21, 2016. She provided updated medical records, letters from Dr. Watrous regarding her condition, a functional capacity evaluation, and a comprehensive vocational evaluation. 1699-1707 The additional medical records showed Ms. Espindola treated with Dr. Watrous on August 7, 2015, September 3, 2015, September 14, 2015, September 29, 2015, November 19, 2015, January 11, 2016, and January 20, 2016. While the visits document additional problems with Ms. Espindola’s knee and stomach, her disabling pain, stiffness, and fatigue remained. 1332, 1339, 1329, 1346, 1354, 1323, 1326 The January 11, 2016 visit went into some detail regarding Ms. Espindola’s typing ability. It reported that Ms. Espindola had attempted to type for prolonged periods of time, but after about “10-15 minutes developed pain to hands, wrists and shoulders plus hand cramps which prevented further typing.” 1323 It also discussed why Ms. Espindola had difficulty with sustained sitting, standing, and walking. Further, Dr. Watrous reported, “[f]atigue has been an issues [sic] in regards to ability to focus on completing work, has to take frequent rest or lay down for period of time during the day to complete tasks.” 1323 Dr. Watrous continued to document Ms. Espindola’s limited functional capacity in his January 20, 2016 treatment note, writing: 1326 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 24 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 Currently attending PT for chronic hand pain which is aggravated by typing. Dedra’s previous occupation was data base administrator which required 90-100% of job is related to typing. In regards to the ability of typing Dedra is only able to type about 1-3% in an 8 hour work day. Dedra is able to type for only about 10-15 minutes, after this time she develops hand pain, at bilateral MCPs (metacarpophalangeal joints) and PIPs (proximal interphalangeal joints) and occasional DIPs (distal interphalangeal joints), wrists and elbows which become stiff with swelling to joints which prevents further typing and requires about period of rest but even after resting unable to return to typing due to exacerbation of pain from the attempt of typing. For the rest of the day hand, wrist and elbow pain are evident and causes inability to perform any further typing. On December 29, 2015, Ms. Espindola underwent a functional capacity evaluation, the results of which established that she was incapable of meeting the demands of even a sedentary occupation. 1314 Steven Danchik, M.Ed., PT found: Claimant was able to sit for 30 minutes; however was frequently using compensatory movements for relief of pain, stiffness and discomfort during this time and throughout FCE. The claimant was able to perform carrying a box already at waist level with a maximum carrying capacity of 5 pounds, but was not able to lift box from floor. This was due to pain, limited range of motion and improper body mechanics. As patient was performing the stair mobility activity, considerable bilateral knee pain was 1315 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 25 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 observed. Patient was experiencing highest levels of pain while descending. This was causing improper body mechanics with safety concerns. Note: claimant reported very high pain levels during and throughout FCE (7-9/10). As Testing continued, constant and increasing Bilateral Hand pain and Bilateral knee pain were limiting factors. Claimant had difficulty using both right and left hand to grasp and turn a round door knob with strong to moderate resistance. Trying to open water bottle caps and pill containers gives claimant considerable difficulty. Turning a Handicap compliant (door lever) handle with moderate resistance was achieved. All activities requiring claimant to hold hands out; such as handling, feeling, fingering and typing initiated immediate levels of increasing pain. Claimant showed good effort and was very compliant. Linda Hayes, M.Ed. ARP, CRC reviewed medical records and occupational records and concluded that Ms. Espindola was incapable of performing the duties of any occupation. 775-87 Ms. Hayes’ conclusion: It is evident based on the FCE that not only is Ms. Espindola disabled form performing the physical requirements of her own occupation, she is not able to perform the essential physical demands of a sedentary occupation and is therefore disabled from any occupation as well. A transferrable skills analysis was conducted by Bob Black, vocational case manager for the Insurer. Mr. Black identified two alternate occupations for Ms. Espindola. These occupations were Claims Examiner and Systems 786-87 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 26 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 Analyst. After a thorough review of the essential duties of these occupations, it is evident that they are almost if not identical to the essential job tasks for a Database Administrator, Ms. Espindola’s pre-disability occupation. This is particularly applicable to the amount of keyboarding/ fingering and data entry required for the alternate occupations. Ms. Espindola’s own occupation requires almost 100% computer usage (see attached job description) and the claims examiner and systems analyst positions required between 80 and 96% computer usage as per the O*Net detailed report and the DOT. The FCE indicated that Ms. Espindola cannot keyboard without pain and stiffness but the Peer Review and IME contradict that; stating that Ms. Espindola could keyboard on a frequent basis. If we were to concede that she is able to tolerate this activity, that would mean typing/ keyboarding between 33% and 66% of the workday. Computer keyboarding, fingering and data entry are required constantly or from 66% to 100% of the workday for Ms. Espindola’s pre- disability occupation and the alternate occupations suggested by the transferrable skills analysis. Most important is the fact that Ms. Espindola is not capable of performing computer keyboarding tasks on even an occasional basis which is supported by her physician’s restrictions and the FCE. Sitting for at least 66% of the workday is also a required task of Ms. Espindola’s pre-disability occupation, as it is for the suggested alternate occupations. She is unable to tolerate this activity as evidenced by the FCE. It has already been accepted and acknowledged by the insurer that Ms. Espindola is disabled from her own occupation and therefore she is unable to perform the essential duties of the alternate occupations. Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 27 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 In addition, the wages for the alternate occupations do not meet the wage requirements for Ms. Espindola. In fact the wages for Claims Examiner and Systems Analyst are significantly lower than the wages for Database Administrator in both California and nationally. Therefore, the suggested alternate occupations are not suitable for Ms. Espindola from both the physical requirements and the wage levels. Ms. Espindola does not meet the minimum physical demand levels for her own occupation or even for sedentary work. In conclusion, based on the limitations and restrictions placed on her by her treating physicians and the results of the objective FCE, Ms. Espindola does not meet the minimum physical demand levels for her own occupation or even for sedentary work. Her return to work prognosis for her own occupation or any occupation is unlikely. She is currently totally disabled from any occupation for which she is trained, educated and experienced and her return to work prognosis for or any occupation is highly unlikely. In response to the appeal, Standard had Dr. Fraback perform another review. As stated in his January 30, 2016 report, Dr. Fraback felt “[t]he findings of the FCE and her treating rheumatologist are somewhat in conflict with the rheumatology IME.” 1307 Dr. Fraback then walked back his opinion slightly with respect to Ms. Espindola’s use of her hands, “I still think that she could do freqient [sic] reaching, handling and fingering if she could alternate her activities throughout the day. She 1307 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 28 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 would need the ability to stand and stretch periodically.” Following Dr. Fraback’s review, Standard hired a rheumatologist in Ohio to perform a paper review of the file. 1275 In addition to his review, Dr. Matthew Burton called Dr. Watrous to discuss Ms. Espindola’s claim. Having treated Ms. Espindola at least 28 times, Dr. Watrous stated, “he doubted very much that Ms. Espindola will ever be able to return to work.” 1282 Dr. Burton then addressed which diagnoses were supported and the limitations each diagnosis caused Ms. Espindola. Dr. Burton found support for the diagnoses of lupus and fibromyalgia. He noted that joint pain from lupus could occur even in the presence of well-controlled lupus. 1283 In fact, he stated that “[Ms. Espindola’s] complaints of joint pain are out of proportion to what is usually seen in fibromyalgia, but they are not unexpected in individuals who had lupus, even lupus that is well controlled.” 1284 However, Dr. Burton felt these symptoms were treatable and there was no “measurable evidence that het claimant was unable to perform fulltime sedentary work activity.” 1283 Due to a perceived lack of measurable evidence, Dr. Burton’s opinion was that Dr. Haselwood had rightly concluded Ms. Espindola was capable of sedentary work on a computer. However, when subjective symptoms were considered, it was noted that, “while not having any objective findings to prevent her from performing her job duties, [she] might find it difficult to cope with the symptoms of pain and fatigue in order to get 1284 Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 29 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS KA NT OR & K AN TO R LL P 19 83 9 N or dh of f S tre et No rth rid ge , C ali fo rn ia 91 32 4 (8 18 ) 8 86 25 25 through her workday.” Standard asked Dr. Burton whether Ms. Espindola’s symptom complaints were consistent with the medical documentation in terms of examination and diagnostic test results. Dr. Burton answered: “Yes, the claimant’s complaints of fatigue and pain, sleep disturbance, and interference with activities of daily living are all complaints of an individual with fibromyalgia.” 1284 Dr. Burton also confirmed that, yes, Ms. Espindola’s joint pain were consistent with her well controlled lupus. 1284 However, Dr. Burton felt there was a “lack of measureable evidence to support this individual’s inability to work fulltime in a sedentary capacity.” 1285 Following another vocational review that again relied upon the Dictionary of Occupational Titles, Standard upheld the termination of benefits in a letter dated April 20, 2016. 768, 1669 DATED: June 9, 2017 KANTOR & KANTOR, LLP By /s/ Brent Dorian Brehm Brent Dorian Brehm Attorneys for Plaintiff Dedra Espindola Case 2:16-cv-01301-JAM-CKD Document 23-1 Filed 06/09/17 Page 30 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DECLARATION OF BRENT DORIAN BREHM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Glenn R. Kantor (SBN: 122643) E-mail: gkantor@kantorlaw.net Alan E. Kassan (SBN: 113864) E-mail: akassan@kantorlaw.net Brent Dorian Brehm (SBN: 248983) E-mail: bbrehm@kantorlaw.net KANTOR & KANTOR, LLP 19839 Nordhoff Street Northridge, CA 91324 Telephone: (818) 886-2525 Facsimile: (818) 350-6272 Attorneys for Plaintiff, DEDRA ESPINDOLA UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DEDRA ESPINDOLA, Plaintiff, vs. STANDARD INSURANCE COMPANY and DST SYSTEMS, INC., LONG TERM DISABILITY PLAN, Defendants. CASE NO. 2:16-cv-01301-JAM-CKD DECLARATION OF BRENT DORIAN BREHM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Date: August 22, 2017 Time: 1:30 p.m. I, Brent Dorian Brehm, hereby declare as follows: 1. I am an attorney duly licensed to practice law before all of the Courts of the State of California, the District Courts of the Central, Northern, Eastern, and Southern Districts of California, and the Ninth Circuit Court of Appeals. I am a senior associate in the law firm of Kantor & Kantor LLP, counsel of record for Plaintiff, Dedra Espindola, in the within action. I have been affiliated with Kantor & Case 2:16-cv-01301-JAM-CKD Document 23-2 Filed 06/09/17 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF BRENT DORIAN BREHM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Kantor since December of 2006 and am an eleventh-year senior associate at the firm. The following facts are of my own personal knowledge and if called as a witness I could and would competently testify thereto. 2. Attached hereto as Exhibit 1 is a true and correct copy of the Social Security Administration’s Notice of Award that was provided to me by Plaintiff, Dedra Espindola. It has been redacted to conform with F.R.C.P. 5.2 and Local Rule 140. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 9th day of June, 2017, at Northridge, California. /s/ Brent Dorian Brehm Brent Dorian Brehm Case 2:16-cv-01301-JAM-CKD Document 23-2 Filed 06/09/17 Page 2 of 7 EXHIBIT 1 Case 2:16-cv-01301-JAM-CKD Document 23-2 Filed 06/09/17 Page 3 of 7 Case 2:16-cv-01301-JAM-CKD Document 23-2 Filed 06/09/17 Page 4 of 7 Case 2:16-cv-01301-JAM-CKD Document 23-2 Filed 06/09/17 Page 5 of 7 Case 2:16-cv-01301-JAM-CKD Document 23-2 Filed 06/09/17 Page 6 of 7 Case 2:16-cv-01301-JAM-CKD Document 23-2 Filed 06/09/17 Page 7 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 Glenn R. Kantor (SBN: 122643) E-mail: gkantor@kantorlaw.net Alan E. Kassan (SBN: 113864) E-mail: akassan@kantorlaw.net Brent Dorian Brehm (SBN: 248983) E-mail: bbrehm@kantorlaw.net KANTOR & KANTOR, LLP 19839 Nordhoff Street Northridge, CA 91324 Telephone: (818) 886-2525 Facsimile: (818) 350-6272 Attorneys for Plaintiff, DEDRA ESPINDOLA UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DEDRA ESPINDOLA, Plaintiff, vs. STANDARD INSURANCE COMPANY and DST SYSTEMS, INC., LONG TERM DISABILITY PLAN, Defendants. CASE NO. 2:16-cv-01301-JAM-CKD [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Date: August 22, 2017 Time: 1:30 p.m. Case 2:16-cv-01301-JAM-CKD Document 23-3 Filed 06/09/17 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT K A N T O R & K A N T O R L L P 19 83 9 N o rd h o ff S tr ee t N o rt h ri d g e, C al if o rn ia 9 13 24 (8 18 ) 88 6 25 25 The Court, having considered Plaintiff’s Motion for Summary Judgement, Defendant’s Opposition and Cross-Motion for Summary Judgment, all related pleadings and evidence presented, and the Parties arguments at the hearing, hereby finds that Standard erroneously terminated Dedra Espindola’s disability benefits under the terms of the Plan. The Court finds Ms. Espindola established her disability under the terms of the Plan and thus awards her retroactive benefits under the Plan to date, plus interest, and allows her attorneys to bring a motion for attorneys’ fees and costs as allowed under ERISA. IT IS SO ORDERED. Dated: The Honorable John A. Mendez U.S. District Court Judge Case 2:16-cv-01301-JAM-CKD Document 23-3 Filed 06/09/17 Page 2 of 2