Espindola v. Standard Insurance Company et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.June 30, 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 157391.1 1 Case No. 2:16-cv-01301-JAM-CKD DEF. NOT. OF MOT. AND CROSS-MOT. FOR SUMMARY JUDGMENT LAW OFFICES MESERVE, MUMPER & HUGHES LLP Linda M. Lawson (Bar No. 77130) llawson@mmhllp.com Charles K. Chineduh (Bar No. 273258) cchineduh@mmhllp.com Allison Vana (Bar No. 228282) avana@mmhllp.com MESERVE, MUMPER & HUGHES LLP 800 Wilshire Boulevard, Suite 500 Los Angeles, California 90017-2611 Telephone: (213) 620-0300 Facsimile: (213) 625-1930 Attorneys for Defendant STANDARD INSURANCE COMPANY 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 DEFENDANT STANDARD INSURANCE COMPANY'S NOTICE OF CROSS- MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Date: September 19, 2017 Time: 1:30 p.m. Ctrm: 6 Judge: Hon. John A. Mendez TO PLAINTIFF DEDRA ESPINDOLA AND TO HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 19, 2017 at 1:30 p.m., in Courtroom 6 of the above-entitled Court, located at 501 I Street, Sacramento, California 95814, Defendant Standard Case 2:16-cv-01301-JAM-CKD Document 28 Filed 06/30/17 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 157391.1 2 Case No. 2:16-cv-01301-JAM-CKD DEF. NOT. OF MOT. AND CROSS-MOT. FOR SUMMARY JUDGMENT LAW OFFICES MESERVE, MUMPER & HUGHES LLP Insurance Company (“Standard”) will, and hereby does, move this Court for summary judgment on the grounds that Plaintiff has not met her burden of establishing by a preponderance of the evidence, and based on the Administrative Record in this ERISA matter, that she is entitled to further long term disability benefits under the terms and conditions of group long term disability insurance policy number 642698-B. Standard files its Cross-Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment in accordance with the Court’s November 21, 2016 Order that “this ERISA matter should proceed on cross motions for summary judgment” (ECF Doc. No. 18).1 This Motion is based upon this Notice of Cross-Motion and Cross-Motion; the concurrently filed Memorandum of Points and Authorities in Support of Standard’s Cross-Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment; the Administrative Record in this ERISA matter, a copy of which was previously produced to Plaintiff’s counsel, is cited in the parties’ respective cross-motions, and will be lodged with further privacy redactions by July 6, 2017 pursuant to the Court’s June 12, 2017 Order; Standard’s concurrently filed Statement of Undisputed Facts; the concurrently filed Response to Plaintiff’s Separate Statement of Undisputed Facts; all other pleadings, papers, and records on file or lodged in this action; and on such other and further matters that may be presented to the Court at or prior to the hearing on this Motion. Dated: June 30, 2017 MESERVE, MUMPER & HUGHES LLP Linda M. Lawson Allison Vana By: /s/ Linda M. Lawson Linda M. Lawson Attorneys for Defendant STANDARD INSURANCE COMPANY 1 Standard respectfully requests the Court convert this briefing to a motion for judgment under Federal Rule of Civil Procedure 52, and the hearing into a bench trial on the AR. A de novo standard of review applies in this case. 08/10/16 Order re Stip. (ECF Doc. 15). See Randall v. Metropolitan Life Ins. Co., 2017 WL 476404, at *16 (N.D. Cal. 2017) (stating, where parties’ stipulated to de novo review and filed cross-motions for summary judgment, court would conduct a bench trial pursuant to Rule 52); Hoskins v. Bayer Corp. & Business Servs. Long Term Disability Plan, 564 F. Supp. 2d 1097, 1099 n.1, 1103 (N.D. Cal. 2008) (construing cross-motions for summary judgment as motions for judgment under Rule 52). Case 2:16-cv-01301-JAM-CKD Document 28 Filed 06/30/17 Page 2 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 157386.1 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Linda M. Lawson (Bar No. 77130) llawson@mmhllp.com Allison Vana (Bar No. 228282) avana@mmhllp.com MESERVE, MUMPER & HUGHES LLP 800 Wilshire Boulevard, Suite 500 Los Angeles, California 90017-2611 Telephone: (213) 620-0300 Facsimile: (213) 625-1930 Attorneys for Defendant STANDARD INSURANCE COMPANY 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 DEFENDANT STANDARD INSURANCE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Notice of Motion and Cross-Motion for Summary Judgment, Statement of Undisputed Facts in Support of Cross- Motion, Response to Plaintiff’s Separate Statement of Undisputed Facts, and [Proposed] Order filed concurrently] Date: September 19, 2017 Time: 1:30 p.m. Ctrm: 6 Judge: Hon. John A. Mendez Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 1 of 42 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 TABLE OF CONTENTS Page - 157386.1 i Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP I. INTRODUCTION............................................................................................1 II. STATEMENT OF FACTS...............................................................................3 A. Relevant Terms and Conditions Group LTD Policy No. 642698-B (“Policy”) ..............................................................................3 B. Claim History .........................................................................................4 1. Standard Approves LTD To Espindola’s Anticipated Return to Work ............................................................................4 2. In 2013 Espindola, Through Counsel, Appealed the LTD Claim Closure .....................................................................6 a. Rheumatology physician consultant Dr. Fraback finds Espindola capable of at least occasional fingering and handling activity........................8 b. Standard reopens Espindola’s claim after obtaining a vocational review that included information received on appeal .........................................9 3. Standard Investigates Espindola’s Eligibility for Continued LTD Benefits Under the Policy’s Any Occupation Definition of Disability ............................................9 a. Standard obtains updated medical records ......................10 b. Physician Consultant Dr. Fraback’s July 14, 2014 report.......................................................................10 c. Dr. Watrous’ records reflect undifferentiated pain complaints................................................................10 d. 2014 Transferrable Skills Assessments (“TSAs”)..........................................................................11 e. Rheumatologist Dr. Douglas Haselwood’s May 2015 IME Finds Espindola capable of frequent hand movements and fingering activities and notes behavior inconsistent with pain complaints................................................................11 f. A TSA identifies alternative sedentary occupations ......................................................................13 g. Dr. Fraback conducts an updated medical records review .................................................................14 h. On July 30, 2015, Standard denies “Any Occupation” Benefits ......................................................14 Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 2 of 42 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 TABLE OF CONTENTS (cont.) Page - 157386.1 ii Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP 4. Espindola, Through Counsel, Appeals ......................................15 a. Dr. Fraback reviews updated records and Danchik’s Report.............................................................17 b. Independent rheumatology physician consultant Dr. Matthew Burton reviews Espindola’s medical records, speaks to Dr. Watrous, and concludes Espindola is capable of full-time sedentary job duties with reasonable continuity.......................................................17 c. Standard obtains a vocational review..............................18 d. Standard upholds the denial of ongoing LTD benefits.............................................................................19 III. ARGUMENT .................................................................................................20 A. Under a De Novo Standard, Espindola Must Prove Entitlement to LTD Benefits By a Preponderance of the Evidence and Based on the Administrative Record.............................20 B. Espindola Cannot Meet Her Burden of Establishing That She Is Entitled to Ongoing LTD Benefits Under the Terms of the Policy and Based on the AR ......................................................22 1. A Symptom or Diagnosis Alone Does Not Establish Disability....................................................................................23 2. Standard Appropriately Relied Upon the Opinions of an IME, Two Physician Consultants, and Multiple Vocational Reviews, and No Special Deference is Owed to Espindola’s Treating Physician...................................25 3. Espindola Relies Upon Additional Unsupported Arguments and Distinguishable Authority ................................31 4. Standard Is Not Required to Show Espindola’s Condition Improved...................................................................33 5. The Social Security Disability Benefits Award Does Not Bind Standard .....................................................................35 IV. CONCLUSION ..............................................................................................35 Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 3 of 42 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 TABLE OF AUTHORITIES Page(s) - 157386.1 iii Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Cases Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006) .............................................................................................. 23 Arko v. Hartford Life & Accident Ins. Co., 672 Fed. Appx. 693 (9th Cir. 2016).................................................................................... 23 Black & Decker Disability Plan v. Nord, 538 U.S. 822…(2003)............................................................................................. 24, 26, 29 Bledsoe v. Metropolitan Life Ins., Co., 90 F. Supp. 3d 901 (C.D. Cal. 2015) .................................................................... 25, 33 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)............................................................................................................ 20 Demer v. IBM Corp. LTD Plan, 835 F.3d 893 (9th Cir. 2016) .............................................................................................. 25 Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640 (7th Cir. 2007) .............................................................................................. 25 Disanto v. Wells Fargo & Co., 2007 WL 2460732 (M.D. Fla. 2007).................................................................................. 24 Gallegos v. Prudential Ins. Co. of Am., 2017 WL 2418008 (N.D. Cal. 2017) ............................................................................ 25, 33 Hans v. Unum Life Ins. Co., 2015 WL 5838462 (C.D. Cal. 2015) ............................................................................ 31, 32 Hawkins v. First Union Corp. Long Term Disability Plan, 326 F.3d 914 (7th Cir. 2003) .............................................................................................. 25 Holifield v. Unum Life Ins. Co. of Am., 640 F. Supp. 2d 1224 (C.D. Cal. 2009) .............................................................................. 23 Hoskins v. Bayer Corp. & Business Servs. Long Term Disability Plan, 564 F. Supp. 2d 1097 (N.D. Cal. 2008).............................................................................. 21 Inciong v. Fort Dearborn, 570 F. Appex. 724 (9th Cir. 2014)........................................................................... 28, 33,35 Jahn-Derian v. Metropolitan Life Ins. Co., 2016 WL 1355625 (C.D. Cal. 2016) .................................................................................. 25 Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869 (9th Cir. 2003) .................................................................................. 23, 29, 30 Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 4 of 42 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 TABLE OF AUTHORITIES (cont.) Page(s) - 157386.1 iv Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) ...................................................................................... 22, 29 Kushner v. Lehigh Cement Co., 572 F. Supp. 2d 1182, (C.D. Cal. 2008) ................................................................. 28, 30, 35 LaVertu v. Unum Life Ins. Co., 2014 WL 1224736 (C.D. Cal. 2014) .................................................................................. 34 Lawrence v. Life Ins. Co. of N. Am., 144 F. Supp. 3d 1140 (C.D. Cal. 2015) ........................................................................ 21, 28 Leetzow v. Metropolitan Life Ins. Co., 2016 WL 7324092 (C.D. Cal. 2016) .................................................................................. 25 Leipzig v. AIG Life Ins. Co., 362 F.3d 406 (7th Cir. 2004) .............................................................................................. 30 Lopez v. Standard Ins. Co., 2017 WL 532119 (M.D. Fla. 2017).............................................................................. 22, 31 2017 WL 519258 (M.D. Fla. 2017).................................................................................... 22 Marcus v. Califano, 615 F.3d 23 (1979) ............................................................................................................. 24 Martin v. Aetna Life Ins. Co., 223 F. Supp. 3d 973, 2016 WL 6997484 (C.D. Cal. 2016).......................................... 30, 32 Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008)............................................................................................................ 21 Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290 (9th Cir. 2010) .......................................................................... 21, 25, 33, 34 Opeta v. Nw. Airlines Pension Plan for Contract Employees, 484 F.3d 1211 (9th Cir. 2007) ...................................................................................... 21, 35 Palmer v. Univ. Med. Group, 994 F. Supp. 1221 (D.C. Or. 1998) .................................................................................... 24 Randall v. Metropolitan Life Ins. Co., 2017 WL 476404 (N.D. Cal. 2017) .................................................................................... 21 Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (9th Cir. 2008) .............................................................................................. 34 Santos v. Quebecor World Long Term Disability Plan, 2009 WL 1362696 (E.D. Cal. 2009)................................................................................... 28 Seleine v. Fluor Corp. Long-Term Disability Plan, 598 F. Supp. 2d 1090 (C.D. Cal. 2009) .................................................................. 25, 26, 30 409 F. Appex 99 (9th Cir. 2010)......................................................................................... 26 Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 5 of 42 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 TABLE OF AUTHORITIES (cont.) Page(s) - 157386.1 v Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Viale v. Aetna Life Ins. Co., 2011 WL 3736239 (C.D. Cal 2011) ............................................................................. 21, 23 Wiley v. Cendant Corp. Short Term Disability Plan, 2010 WL 309670 (N.D. Cal. 2010) .............................................................................. 21, 35 Yancy v. United of Omaha Life Ins. Co., 2015 WL 9311729 (C.D. Cal. 2015) .................................................................................. 33 Statutes 29 U.S.C. § 1001............................................................................................................................... 1 29 U.S.C. § 1132(a)(1)(B) .............................................................................................................. 21 42 U.S.C. § 423(f)........................................................................................................................... 35 Rules Federal Rule of Civil Procedure 52 .......................................................................................... 20, 21 Federal Rule of Civil Procedure 56 .................................................................................... 20, 21, 22 Federal Rule of Civil Procedure 56(a)............................................................................................ 20 Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 6 of 42 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 157386.1 1 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP I. INTRODUCTION. Plaintiff Dedra Espindola seeks to recover additional long term disability (“LTD”) benefits under a group policy issued by Standard Insurance Company (“Standard”) to DST Systems, Inc. (“DST”), and governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). The issue is whether Espindola can prove, by a preponderance of the evidence, that she was disabled from any occupation, as defined in the policy, as of July 30, 2015, when Standard discontinued benefits. Neither ERISA nor the policy place any burden on Standard to “disprove” Espindola’s disability or to turn a blind eye to Espindola’s failure to meet that burden, as Espindola now in effect asks the Court to do. Espindola, a 42-year-old former database administrator ceased work in August 2012 due to lupus--which her rheumatologist, Dr. Watrous, has assessed as “mild.” By January 2013, Espindola claimed she was also unable to work due to fibromyalgia, although Dr. Watrous’ contemporaneous claim form did not mention the diagnosis. Standard paid and closed Espindola’s claim as of the anticipated return-to-work date Dr. Watrous provided: January 15, 2013. Espindola did not return to work. Rather, she obtained counsel and appealed, submitting a report from a vocational consultant who observed that Espindola “may have exaggerated her reported pain levels.” Standard obtained reviews by two physician consultants, both of whom noted--consistent with records from Espindola’s treating physicians and recent benign lab results--that her lupus appeared to be under good control. While a rheumatology physician consultant (Dr. Fraback) concluded that the medical evidence supported that Espindola was capable of sedentary work with “at least” occasional fingering (keyboarding) and handling, Standard reopened her claim after a vocational review concluded, based on new evidence (including information from DST), that her own sedentary occupation of Data Base Administrator required frequent to constant fingering. Espindola continued to complain of pain, and to emphasize her purported inability to type. Standard obtained updated medical records, which Dr. Fraback reviewed, noting complaints that were disproportionate to other evidence in the record. Standard paid LTD benefits for the full “Own Occupation” period, but closed Espindola’s claim after finding she did not meet the policy’s Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 7 of 42 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 157386.1 2 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP “Any Occupation” definition--a key point Espindola’s Motion glosses over. Espindola needed to meet a different standard for disability in order to continue receiving benefits. Standard’s benefit determination is supported not only by Dr. Fraback’s updated records reviews, but by an independent medical examination (“IME”) that Espindola attended in May 2015 with a board certified rheumatologist (Dr. Haselwood). Dr. Haselwood, like Dr. Fraback, noted that since around the time of the initial LTD claim closure in early 2013, Espindola had repeatedly reported 10/10 levels of pain and fatigue to Dr. Watrous--undifferentiated self-reports, inconsistent with the record as a whole and with Dr. Haselwood’s exam and observations of Espindola. Nevertheless, Dr. Haselwood--like Dr. Fraback--did not simply ignore Espindola’s symptoms. Rather, he found certain limitations and restrictions were supported by the record, i.e. Espindola was capable of full-time sedentary work with frequent fine hand movements and fingering. A vocational consultant identified three sedentary occupations consistent with those restrictions. Espindola, through counsel, appealed, relying on conclusory opinions from Dr. Watrous which, in turn, appear to simply adopt Espindola’s self-rated pain and statements of her own (perceived) limitations. Espindola also provided a functional capacity evaluation (“FCE”) report that, in part, found she meets “Demand Minimum Functional Capacity” requirements for bilateral reaching, grasping, holding an object, and sitting for 30 minutes continuously; but that she (illogically and without objective medical support) was “not capable” of “lifting anything at all” or even standing. Espindola also provided a report from a vocational consultant who appeared to extrapolate specific restrictions from the FCE that do not appear in the report, e.g. that Espindola cannot perform even occasional keyboarding or sit a specific amount of time. Standard upheld its decision after Dr. Burton, an independent physician consultant, board certified in rheumatology, reviewed Espindola’s medical records, spoke to Dr. Watrous, and, like three consultants before him, noted complaints incompatible with the medical evidence as a whole. Dr. Burton concluded Espindola was capable of full-time sedentary work with reasonable continuity. A vocational consultant reviewed information from Espindola on appeal, and found the transferrable occupations Standard identified earlier remained appropriate. In her Motion, Espindola misstates and mischaracterizes evidence in the AR and the claim Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 8 of 42 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 157386.1 3 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP process itself in an effort to impose burdens on Standard unsupported by ERISA or the policy. She confuses objective evidence of a diagnosis or condition with evidence that her condition renders her unable to perform, with reasonable continuity, the Material Duties of Any Occupation. Espindola’s “evidence” does not become, in effect, irrefutable or otherwise establish Proof of Loss simply because she provides self-reports of pain to a doctor who records them in his office notes. Because Espindola cannot meet her burden of proof, Standard respectfully requests the Court enter judgment in its favor and deny Espindola’s Motion. II. STATEMENT OF FACTS. Standard issued Group LTD Policy No. 642698-B to DST and administered claims for LTD benefits under the Policy. (23, 26, 47)1 In August 2012, Espindola was employed by DST. (665) A. Relevant Terms and Conditions Group LTD Policy No. 642698-B (“Policy”). During the Own Occupation Period (“first 24 months for which LTD Benefits are paid”), an insured with Predisability Earnings (“PDE”) under $12,500 (i.e. “Class 2”) must be Disabled from her “Own Occupation.” (26; 10; 387 [PDE: $7,113.18/month]) The Policy provides, in part: “You are Disabled from your Own Occupation if, as a result of Physical Disease, Injury, Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of your Own Occupation.” (31) “Own Occupation” means: [A]ny employment, business, trade, profession, calling or vocation that involves Material Duties of the same general character as the occupation you are regularly performing for your Employer when Disability begins. In determining your Own Occupation, we are not limited to looking at the way you perform your job for your Employer, but we may also look at the way the occupation is generally performed in the national economy…. (31) [Emph. added.] During the Any Occupation Period (“the end of the Own Occupation Period to the end of the Maximum Benefit Period”), Espindola must be “Disabled from all occupations.” (14, 27) 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. 1 Citations are to Bates numbered pages of the Administrative Record (“AR”), to be lodged through e-filing by July 7, pursuant to the Court’s June 12, 2017 Order. (ECF Doc. 25 at 3:15-21.) Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 9 of 42 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 157386.1 4 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP 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 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 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 modified or omitted. In no event will we consider working an average of more than 40 hours per week to be a Material Duty. (AR 14) The Policy also requires Espindola to provide ongoing Proof of Loss. (45) LTD benefits end at the earliest of, in part: “The date you are no longer Disabled”; or “The date you fail to provide proof of continued Disability and entitlement to LTD Benefits.” (34) For claims not due to Mental Disorders, the Policy provides that Standard: “may require proof of physical impairment that results from anatomical or physiological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” (AR 45) (Emphasis added.) The Policy also contains a lifetime 24-month limited pay period for disabilities “caused or contributed to by” “Other Limited Conditions”, including: “chronic fatigue conditions” and “chronic pain conditions (such as fibromyalgia….)….” (15) While this does not include lupus, Espindola’s Motion heavily emphasizes fibromyalgia and chronic fatigue. B. Claim History. 1. Standard Approves LTD To Espindola’s Anticipated Return to Work. Espindola, then 37 years old, last worked for DST on August 14, 2012. (AR 1975) A few months later, she submitted an LTD claim to Standard, reporting that she became unable to work at her occupation on August 15, 2012 due to: lupus, first noticed in October 2010, and “ITP (blood disorder).”2 (Id.) Espindola identified rheumatologists Dr. Susan Lemon and Dr. Daniel Watrous, and primary care physician, Dr. Raman Verma, as “all” physicians she consulted “for this injury or 2 Idiopathic thrombocytopenic purpura “is a disorder that can lead to easy or excessive bruising and bleeding….” (509) As of July 2015, Espindola’s ITP was well-controlled. (1626) She now argues her LTD claim is “based on” lupus and fibromyalgia. (Mot. at 1:2-3) Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 10 of 42 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 157386.1 5 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP illness.” (1976) Standard requested medical records from all three treating physicians. (AR 639) Standard requested a current job description (“JD”) from DST for Espindola’s database administrator position. The JD DST provided did not specify any required amount of keyboarding. (1242; 683) Standard referred Espindola’s claim to a Vocational Case Manager (“VCM”), who reviewed information, and relied on sources including Skill TRAN Job Browser Pro, which draws on information from the Dictionary of Occupational Titles (“DOT”). The VCM determined the sedentary strength occupation of Data Base Administrator best represented Espindola’s Own Occupation; and, according to the DOT, required occasional handling and fingering. (1238-41) Espindola first consulted with Dr. Watrous on May 23, 2012. (365) Dr. Watrous’ exam of Espindola’s peripheral joints revealed “no significant tenderness to palpation or stress testing” and Dr. Watrous found “no synovial swelling, erythema, increased warmth or effusions.” (344) He assessed “Mild lupus” and noted he would fill out “FMLA papers” because of “flares of fatigue that she has been having.” (Id.) (Emphasis added) Dr. Watrous also found that Espindola “does not have significant risk for dangerous forms of lupus other than through her platelets but we will monitor renal function….” (Id.) On July 23, 2012, Espindola, who had “no fatigue”, “denies joint pain”, and was in a “good general state of health,” saw Dr. Verma for a physical because she wanted to adopt another child. (361) (Emphasis added.) Only one day later, she told Dr. Watrous she continued to have joint pain and felt “worse” since her last visit--and was reportedly given a “note” that she would be “off work due to illness until October 14, 2012.” (320 [07/24/14 office visit note (“OVN”)]) On October 9, 2012, one day before the date of her claim form to Standard, Espindola saw Dr. Watrous again. (316) Espindola complained of “10/10” levels of pain, stiffness, fatigue, and, according to the OVN, was given an “off work” note “until 1/15/2013.” (Id.) In an Attending Physician’s Statement (“APS”) dated October 12, 2012, Dr. Watrous listed diagnoses of SLE (systemic lupus erythematosus) (primary diagnosis) and thrombocytopenia (secondary)--but not fibromyalgia. (365) He indicated Espindola’s condition was “expected to improve”, with a January 15, 2013 anticipated return-to-work date. (366) On December 12, 2012, Standard approved Espindola’s claim for LTD benefits, effective November 13, 2012, after a 90-day Benefit Waiting Period under the Policy. (386; 27) Standard Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 11 of 42 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 157386.1 6 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP denied benefits beyond January 14, 2013, and requested that Espindola provided updated medical records if there were medical reasons she would be unable to return to work on January 15, 2013-- the anticipated return-to-work date Dr. Watrous provided. (386; 366) To the extent Espindola now insinuates she did not understand the reason for the denial (see Mot. at 5:25-6:10) this is both immaterial to her burden on de novo review and disingenuous in light of her statement to Standard in January 2013 that Dr. Watrous “extended her leave out through mid-April.” (633) At that time, Standard again noted the need for updated medical records to support ongoing impairment. (633) Espindola also forwarded a one-line “Dear Sir or Ma’am” letter by Dr. Watrous’ physician assistant, dated January 8: “My patient will be off work due to illness until April 8, 2013.” (285) On a January 25, 2013 questionnaire, Espindola told Standard she was disabled due to lupus, fibromyalgia, and ITP and believed her employment would end in February. (269; 272) 2. In 2013 Espindola, Through Counsel, Appealed the LTD Claim Closure. After closing Espindola’s claim, Standard received additional medical records, including from Dr. Lemon, who on February 7, 2012, noted a “New diagnoses of SLE, without central organ manifestations”, and “No evidence of renal involvement.” (293-94) On June 7, 2012, Dr. Lemon indicated the lupus diagnosis was based on a positive ANA, low positive Smith antibody, RNP, generalized arthralgias, myalgias, and other “subjective history” reported by Espindola. On physical exam, Espindola “lacks widespread fibromyalgia tender points.” (295-96) In 2012, Espindola “switched” rheumatologic care from Dr. Lemon to Dr. Watrous. (AR 1618) Dr. Watrous’ November 9, 2012 OVN added a fibromyalgia diagnosis (280; compare to AR 315). On February 21, 2013, Espindola requested a review of Standard’s decision. (AR 630; 564) She enclosed two conclusory letters. On February 7, 2013, Dr. Watrous’ physician assistant wrote that joint pain and fatigue “have not improved”; a “change” was being considered to “better manage disease”; pain can “fluctuate” but “frequent flares” made it “difficult to perform duties required by…job description”; and “At this time we support continuing disability benefits…..” (265) A February 19, 2013 “Dear Sir/Madam” letter from Dr. Verma referred to Espindola’s diagnoses and that she was under a rheumatologist’s care; indicated Espindola was “not able to Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 12 of 42 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 157386.1 7 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP work or do the activities of daily living without hurting”; and stated Dr. Verma advised Espindola “not to work as this can put extra pressure and make her condition worse.” (266) Espindola agreed to extend the review period while Standard attempted multiple times to obtain updated medical information, including OVNs, from Dr. Watrous. During this time, Dr. Watrous apparently declined Standard’s request to complete a Rheumatology and Connective Tissue (“RCT”) Report. Rather, over a three-month period, Espindola indicated to Standard that Dr. Watrous’ office was arranging for a physical therapy evaluation for another provider to complete the RCT Report. (619-24; 611; 243; 602-06; 239; 585-88; 583 ) Yet Espindola did not provide a completed RCT Report. Instead, she retained counsel and--as set forth below--submitted a report from a vocational consultant who noted Espindola may have exaggerated her pain levels. Rheumatology physician consultant Dr. Joji Kappes reviewed the medical information as Standard received records. Noting recent January 2013 labs, Dr. Kappes found, in part, “SLE by serologic testing shows improvement” and SLE was “under good control” with immunosuppressive treatment. (255-56) On June 5, 2013, Dr. Kappes found Espindola’s SLE appeared under control with Plaquenil and her fibromyalgia was under treatment with Lyrica. (224-25) During a July 1, 2013 telephone call, Espindola told Standard that at DST, she was “continually typing which caused her too much pain to function.” (AR 583-84) Standard noted if Espindola had information supporting that her Own Occupation--and not her specific job--required more than occasional hand usage, Standard would consider it. (584) Later that month, Espindola’s attorney contacted Standard, indicated a Functional Capacity Evaluation (“FCE”) was scheduled, and requested suspension of the review period, to which Standard agreed. (564; 551) On September 27, 2013, Espindola’s attorney requested an appeal, stating that Espindola’s “main claim is extreme fatigue and severe joint pain”, and her job required “continuous typing.” (498, 502) Counsel enclosed a “Vocational Evaluation Report” by Christine Rodriquez, MS, regarding a two-day evaluation in July 2013 on counsel’s referral. (170-77; 907) While Espindola characterizes the evaluation as an “FCE,” Rodriguez herself did not use that title. Moreover, while Espindola argues in her Motion the report “revealed” “limitations,” it instead appears to describe Espindola’s “capacity” at the exam (and not specific restrictions and limitations (“R/Ls”)) based on Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 13 of 42 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 157386.1 8 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP self-reported pain and/or when she took a “pain break.” (170-73) For example, while Espindola “demonstrated the ability” to type 64 words per minute, for 3 minutes and 19 seconds, the test concluded when she stopped and complained of pain. (177) Significantly, Rodriguez also noted: “it was observed by this evaluator that in fact [Espindola] did stay until the scheduled 3:00 p.m. departure time on [both] days, accepting and completing tasks. Therefore, it appears that at times she may have exaggerated her reported pain levels.” (173) (Emphasis added.) Enclosures to Espindola’s appeal letter also included: family and friend support letters; documents (e.g. performance appraisals)3 Espindola claimed were from DST; medical records; and an undated APS from Dr. Watrous that Espindola now (incorrectly) states was “sent” to Standard in January 2013. (Mot. at 6:23-24). Dr. Watrous’ APS listed an SLE diagnosis (not fibromyalgia); subjective symptoms of joint pains, fatigue and weakness; and stated Espindola could occasionally (up to 2.5 hours) perform various activities (e.g. stand, walk, reach); but also indicated was able to lift up to 20 lbs., in contrast to Rodriguez’ evaluation which indicated Espindola demonstrated the ability to lift a maximum of 5 lbs. from floor to table level, at which point she complained of pain. (171) Dr. Watrous’ APS also indicated Espindola would be reevaluated April 8, 2013, and stated “abnormal labs” constituted “objective findings.” (214) However, Dr. Watrous’ March 21, 2013 OVN indicates labs were “WNL” (within normal limits) and “showed stable disease[.]” (181-82) a. Rheumatology physician consultant Dr. Fraback finds Espindola capable of at least occasional fingering and handling activity. Physician consultant Dr. Ronald Fraback, board certified in rheumatology, reviewed Espindola’s medical records, family/friend letters, and Rodriguez’ vocational report. In his October 25, 2013 analysis, Dr. Fraback noted that Rodriguez indicated Espindola may have exaggerated reported pain levels. (163-69) Dr. Fraback found support for a diagnosis of low- grade lupus, benign recent laboratory studies, and Espindola’s history of thrombocytopenia was “not a current issue.” (165) Dr. Fraback did not find definite evidence of hand synovitis, and noted 3 Espindola argues her performance reviews were “exemplary, (Mot. at 10:7-8), and not that her symptoms and/or lupus flares interfered with her work to the extent of negative reviews. Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 14 of 42 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 157386.1 9 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP while Espindola may have fibromyalgia, the medical records did not provide clear documentation supporting the diagnosis. (Id.) He further noted that her pain and fatigue complaints were beyond what would be expected given her diagnosis and physical exam and lab findings. (Id.) Dr. Fraback concluded that, as of January 14, 2013, Espindola was capable of sedentary work, with “at least” occasional fingering, handling, and reaching. (166) (Emphasis added.) This is not, as Espindola’s Motion insinuates, a finding that Espindola was “limited to” such activities on an occasional basis. b. Standard reopens Espindola’s claim after obtaining a vocational review that included information received on appeal. Espindola also enclosed two pages that appear to have been printed in October 2012 (after she ceased work) from what appears to be a DST work portal link. (905; 1181) One page, a bullet- point “Work Conditions” profile regarding the specific job of database administrator, indicates that: “Computer usage may be required up to 100 percent of the time and may include heavy periods of keyboarding….” (905) (Emphasis added.) Standard requested a vocational review to consider information received on appeal. (904) On December 5, 2013, VCM Karol Paquette concluded (as had the earlier vocational review) Espindola’s Own Occupation was Data Base Administrator. (898) However, based on further research, including telephone contact with DST and a “database administrator III” at Standard Insurance, Paquette found as currently performed in the national economy, the Data Base Administrator occupation required frequent to constant handling and fingering, rather than occasional (as per DOT). (Id.) On December 6, 2013, Standard informed Espindola that her LTD claim would be reopened as of January 14, 2013. (483-84) Importantly, Standard’s administrative review found that Espindola had the ability to perform sedentary level work, but with occasional handling, fingering, and reaching. Dr. Fraback’s review, however, indicated that based on the then-available medical documentation, she might have greater capacity. 3. Standard Investigates Espindola’s Eligibility for Continued LTD Benefits Under the Policy’s Any Occupation Definition of Disability. In December 2013, Standard informed Espindola that because the Policy’s Definition of Disability changes after 24 months of benefits, it “will continue to review this claim” to evaluate Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 15 of 42 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 157386.1 10 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP her ability to perform Any Occupation as of November 13, 2014. (421-23) In April 2014, Standard noted Espindola would continue to receive LTD “until we make our decision.” (412) a. Standard obtains updated medical records. In June 2014, Espindola reported that, since July 1, 2013, she had only consulted with Drs. Verma and Watrous, (AR 466), and from whom Standard obtained updated records. (127; 66; 75) Most of the appointments with Dr. Verma (“Reason for Appointment”) were for allergy shots or injections, and the OVNs do not identify specific work limitations. (AR 75-126) Rather, on February 6, 2013 (shortly after initial LTD claim closure), Dr. Verma noted that Espindola was given an allergy shot and “wants to go on disability.” (102) On August 14, 2013, Espindola denied fatigue. Dr. Verma reviewed blood work, noted “all her inflammation markers are normal” and Espindola was given an allergy shot. (107-11) On May 19, 2014, Dr. Verma “reviewed her labs[,] her complete blood count and metabolic profile and lipid profile are unremarkable. Her ANA is negative and CRP and ESR are within normal limits.” (AR 77) b. Physician Consultant Dr. Fraback’s July 14, 2014 report. Dr. Fraback reviewed the updated medical records and, in July 2014, noted that Espindola continued to complain of joint pain, fatigue, and other symptoms, but her laboratory studies and physical exams had been “unremarkable.” (56-57) While she had “some tender joints,” there was “no evidence of synovitis.” (57) “Recent testing for lupus, including an ANA and anti-DNA were negative.” (Id.) Dr. Fraback found no evidence that Espindola’s lupus was active, and opined that “[m]uch of her symptomatology may be related to fibromyalgia.” (58) Dr. Fraback concluded that the updated medical information did not change his prior conclusions regarding Espindola’s R/Ls, and he saw “no reason why she could not perform sedentary work with occasional fingering, handling, and keyboarding activities.” (57-58) c. Dr. Watrous’ records reflect undifferentiated pain complaints. Between February 2013 and January 2016, Espindola saw Dr. Watrous and/or his physician assistant (“PA”). On all but three of those office visits, Espindola reported to Dr. Watrous or his PA that her pain and fatigue level was a 10/10 on the subjective scale. (See 178, 181, 188, 191, 194 [OVNs to 07/08/13]; see also 132, 134; 1380; 1383; 1388; 1393; 1336; 1343; 1332’ 1339; Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 16 of 42 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 157386.1 11 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP 1329; 1354; 1323; 1326 [OVNs: 10/08/13-01/20/16], received after reinstatement of benefits in 12/2013 under Own Occ. definition and during Any Occupation investigation and/or appeal].) d. 2014 Transferrable Skills Assessments (“TSAs”). In her Motion, Espindola argues that Standard “determined” she was “entitled to” Any Occupation benefits. (Mot. at 13:13-14.) This is inaccurate. Rather, in August 2014--during the Any Occupation investigation--a VCM conducted a Transferable Skills Assessment (“TSA”), which ruled out unspecified, alternative occupations related to information technology because they required “heavy” keyboarding in excess of Espindola’s purported restriction to occasional fingering, handling, and keyboard. (886) In November 2014, Standard obtained an updated TSA for consistency with the Policy’s wage requirement, after the earlier TSA applied a higher requirement than the Policy permitted. (875) While Espindola contends Standard “overrode” a determination that she met the Any Occupation definition, the November 2014 claim note she cites indicates a benefit analyst suggested “overriding the any occupation due date”--i.e. date for a decision--to obtain an IME, in light of Dr. Fraback’s opinions. (1751) (Emphasis added.) Indeed, the Policy permits Standard, at its expense, to obtain an IME at reasonable intervals. (45) After noting Dr. Fraback found Espindola could perform occasional fingering/keyboarding but might have greater capabilities, Standard requested Espindola attend an IME. (401) e. Rheumatologist Dr. Douglas Haselwood’s May 2015 IME Finds Espindola capable of frequent hand movements and fingering activities and notes behavior inconsistent with pain complaints. On May 13, 2015, rheumatologist Dr. Douglas Haselwood conducted the IME. (1617-27) While the exam coordinator offered transportation to the IME, Espindola opted for mileage reimbursement (i.e. to drive) instead. (1609) And while Espindola now takes issue with the location of the IME, claiming it was a 140-mile drive, the third-party exam coordinator reported the IME was within the geographic radius Espindola’s attorney provided, and there were issues finding a local examiner due to Espindola’s Tulare, California residence. (1602-03; 1608) The IME included an in-person interview of Espindola, who claimed her job with DST involved “predominantly data entry and retrieval”, and reported having a family member “currently Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 17 of 42 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 157386.1 12 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP off work with fibromyalgia.” (1617; 1622) Espindola told Dr. Haselwood she “does not recall that she was specifically treated for any significant decompensation of her ITP since approximately 2009.” (1618) At the IME, she described “a syndrome of constant widespread musculoskeletal pain, most problematic in both hands and wrists and the anterior hip regions” as well as pain in the elbows, neck and shoulder girdle region. (Id.) Despite repeated complaints to Dr. Watrous and/or his PA of pain at a 10/10 level (including on May 7, 2015--six days before the IME (see supra p. 10:25-11:2), Espindola told Dr. Haselwood her pain ranged from 7-10 (and was an “8” during the IME), and that her pain was often “overshadowed” by fatigue and exercise intolerance. (1618-19) However, Dr. Haselwood found: “A detailed rheumatologic review of systems reveal no convincing evidence of an active synovitis, Raynaud’s phenomenon, fever, malaise, GI, GU, or cardiorespiratory problems suggestive of lupus. There is no alopecia….” (1619) Dr. Haselwood also reviewed Espindola’s medical records (1619) and family/friend letters (1622), and found that primary care physician Dr. Verma’s office notes focused on general health maintenance issues and deferred lupus and other musculoskeletal complaints to rheumatologic surveillance (other providers) (1621). Dr. Haselwood found that Dr. Verma “never documented measurable clinical or physical evidence” to support a conclusion that Espindola’s lupus or fibromyalgia was of a severity to preclude at least sedentary vocational functionality. (1621) On exam at the IME, Espindola had no consistent/localized joint tenderness in her hands and wrists, and had normal motion, grip strength and fist closure. (1623) Espindola reported tenderness in her elbows, shoulders, upper shoulder girdle region, lumbosacral junction and posterior neck--but had normal motion. She also reported “rather diffuse soft tissue tenderness” with varying degrees of palpation and manipulation over the proximal lower extremities, pelvic and paraspinal regions, and upper trapezuis margins; but the tenderness “was too inconsistent and poorly localized to meaningfully map tender points.” (Id) Dr. Haselwood found: “Throughout the soft tissue portion of the examination, her discomfort, withdrawal, and guarding mechanisms were inconsistent and nonphysiologic. In the context of the interview and examination, she was able to ambulate, change posture, and perform other routine physical activities without obvious hardship or limitations.” (Id.) On neurologic exam, “No sensory, motor, or reflex deficits were noted.” (Id.) Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 18 of 42 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 157386.1 13 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Dr. Haselwood found that Espindola’s chronic, complex, yet “poorly defined widespread musculoskeletal pain, fatigue, and dysfunction syndrome” was the cumulative effect of: (1) “Age- appropriate degenerative mechanical musculoskeletal phenomenon”; (2) “Historical precedence for chronic [SLE] presumptively associated with arthralgias, but no unequivocal active synovitis”; (3) “Nonspecific and…poorly defined widespread myofascial discomfort with a hypervigilance for same, historically characterized as…fibromyalgia”; and (4) “Potential element of nonorganic amplification.” (1623) (Emphasis added.) Consistent with Dr. Watrous’ APS’s that refer to a lupus diagnosis (but not fibromyalgia), Dr. Haselwood noted that while some of Dr. Watrous’ OVNs mention fibromyalgia, his APS’s did not state that fibromyalgia was a significant cause of Espindola’s “description of chronic fatigue and dysfunction.” (1624) Dr. Haselwood found that throughout the past few years, Espindola’s lupus “has been fairly quiescent, stable, and well controlled with minimal immunomodulating treatment (Plaquenil).” (1624) Dr. Watrous’ office notes, while recording Espindola’s self-reported complaints, “did not provide any consistent measurable clinical or physical evidence” of pathology or impairments that would correlate with Espindola being permanently incapacitated from even sedentary level work based on uncontrolled lupus. (Id.) (Dr. Watrous’ May 7, 2015 OVN indicates lab results “showed stable disease[.]” (1344) Dr. Haselwood noted that during his exam, Espindola’s “description of intractable and severe levels of fatigue, musculoskeletal pain and dysfunction was quite disproportionately high relative to her observed demeanor and function…and her relatively benign physical findings.” (AR 1625) He concluded that Espindola “has the capacity to perform full-time sedentary vocational functionality with a reasonable expectation of continuity.” (Id.) Dr. Haselwood found support for certain R/Ls due to “chronic, albeit relatively low-grade lupus”: no “frequent moderate-to-heavy lifting/carrying or constant manual exertion or power gripping.” This “would not preclude” her from fine hand movements and fingering on a frequent basis; or exerting up to 10 pounds of force occasionally or a negligible amount frequently with her hands and wrists. (Id.) (Emphasis added) Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 19 of 42 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 157386.1 14 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP f. A TSA identifies alternative sedentary occupations. On June 2, 2015, VCM Bob Black completed a TSA and Any Occupation Review that identified three sedentary alternative occupations Espindola could perform given the R/Ls Dr. Haselwood identified: Claim Examiner (two separate DOT occupations, one involving analysis of claims to determine liability; one involving review of settled claims for compliance with company practices); and Systems Analyst. (821-34) Black found Espindola, who has a BA in management information systems (1977), could demonstrate ability to analyze information and details, and to utilize communication and math skills, for the Claim Examiner occupations; and with her work experience (including database administrator and computer programmer positions [id.]), could also demonstrate technical understanding as a System Analyst. (825-29) Consistent with the Any Occupation definition, Black found Espindola could obtain wages at or above $28.30/hour within 12 months in the Claim Examiner occupations. (824-27) g. Dr. Fraback conducts an updated medical records review. In June 2015, Standard received additional medical records. Overall, Dr. Verma’s updated OVNs (1563-99): continue to include assessment of allergic rhinitis due to pollen; do not identify specific work limitations; and multiple notes indicate Espindola denied joint pain, including on July 9, 2014 (1581), although one day earlier she reported 10/10 level pain to Dr. Watrous (AR 1555). On March 4, 2015, while Espindola complained of pain, including in her hand joints, Dr. Verma noted inflammation markers were normal and she was in a “good general state of health.” (1570) Records from Dr. Watrous’ office continue to reflect Espindola’s across-the-board 10/10 level pain and other complaints (except for difficulty sleeping). (1555; 1547; 1540) Dr. Fraback reviewed updated medical records, which he found did not provide evidence of synovitis, and recent platelet counts were normal. (1527-28) In his July 7, 2015 report, Dr. Fraback noted his opinion in July 2014 was that Espindola “should be able to perform regular sedentary-level work with occasional fingering, keyboarding, and handling due to her complaints of hand pain.” (1527) Dr. Fraback did not state that he previously found Espindola limited to that level. Rather, based on his prior reviews, the new information, and Dr. Haselwood’s rheumatology Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 20 of 42 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 157386.1 15 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP IME, including exam findings, Dr. Fraback concluded Espindola was capable of full-time sedentary work and up to frequent fingering, handling, reaching, and keyboarding. (1528) h. On July 30, 2015, Standard denies “Any Occupation” Benefits. On July 30, 2015, Standard informed Espindola it had determined she did not satisfy the Policy’s Any Occupation definition. (1742-47) Standard explained it had reviewed all medical records received, and rheumatologist Dr. Fraback concluded the medical records and rheumatology IME (with Dr. Haselwood) supported that Espindola was capable of sedentary work activity that included frequent fingering, handling, reaching, and keyboarding. (1744-45) Standard also explained that a vocational consultant identified alternative, sedentary occupations consistent with those restrictions. (1745-46) Standard noted the receipt of benefits after November 12, 2014 while it completed its Any Occupation review did not constitute acceptance of Disability.4 (AR 1744) 4. Espindola, Through Counsel, Appeals. On January 21, 2016, Espindola appealed through counsel, arguing she was unable to work due to SLE, fibromyalgia, migraine headaches, joint and muscle pain, and pain and swelling of the joints in her wrists, hands, and fingers. (AR 1298) In a section of her letter entitled “Disabling Side Effects of Prescription Medications”, Espindola referenced one medication: Vicodin, which she stated she had been prescribed, and she gave a list of side effects purportedly associated with the medication, but did not state she experienced them. (1304) Espindola indicated that she enclosed medical records from Dr. Watrous, but not OVNs from other treating physicians. (1298) The enclosed OVNs indicate Espindola repeatedly told Dr. Watrous she had not had any problems with her medications. (Eg 1323, 1326, 1329, 1332) Vicodin is specifically referenced in OVNs from 2012, more than two years earlier. (Eg 294, 351, 354) And Espindola’s Motion does not reference Vicodin at all. 4 In her Motion, Espindola indicates the decision letter referenced two physicians who did not treat or examine her, but does not explain how this satisfies her burden under the Policy and on de novo review. It does not. Regardless, in August 2015, Standard addressed the issue and explained it found its decision remained accurate and was based on her claim file (i.e. AR). (1730) Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 21 of 42 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 157386.1 16 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Espindola also relied on what she called “letters” from Dr. Watrous (AR 1297)--two office notes, from January 11 and 20, 2016, that do appear akin to opinion letters. On both occasions, Dr. Watrous (again) noted Espindola’s 10/10 self-ratings of pain. (1323, 1326) On January 11, Espindola presented “regarding disability issues”, and reported having “remained off work due to inability to return to typing job.” (1323) (Emphasis added.) She complained of an inability to type 8 hours/day, sit for “prolonged” periods (needing “position changes about every 30 minutes”), stand for “prolonged periods,” walk “prolonged distances,” and that fatigue “has been an issue…” (Id.) Dr. Watrous opined Espindola “cannot work a sedentary job” due to such “findings” (noted in the “subjective” portion of his note) and his “observation.” (Id.) On January 20, after Espindola again complained about her ability to type, Dr. Watrous indicated she could only type 1-3% or 10- 15 minutes in an entire eight-hour workday. However, this statement is (again) in the “subjective” portion of the note, and appears based on Espindola’s self-report. ( 1326) In contrast (but while continuing to note self-rated 10/10 pain), Dr. Watrous’ OVNs more contemporaneous to the July 30, 2015 LTD denial indicate on August 7, 2015, Espindola was “clinically stable on Plaquenil”; “no flair.” (AR 1332-33) On September 14, 2015: “Lupus and fibromyalgia stable.” (AR 1329) Espindola’s attorney also submitted two vocational reports: a December 29, 2015 FCE by Steven Danchik, PT, and a January 19, 2016 “Occupational Analysis” by Linda Hayes. Danchik noted Espindola complained of pain (including with “all” activities requiring her to hold out her hands), and appeared to describe “tolerance” for certain activities (e.g. standing) based on when she disengaged from the activity during the evaluation. (1312-15) Danchik provided conclusions that appear to exceed even Dr. Watrous’ opinions. For example, Danchik claimed Espindola was “not capable of”: standing, and complained of knee pain (but OVNS do not indicate she used assistive devices to stand or walk, and Dr. Watrous recently noted “improved” knee pain [1354]); or “lifting anything at all.” (1314-15) Nevertheless, Danchik concluded Espindola meets “Demand Minimum Functional Capacity requirement” for: “sitting for 30 minutes continuously”; bilateral reaching, seizing, grasping, holding an object, and pinching capacity; and he did not expressly opine that she was restricted from keyboarding or fine manipulation. (AR 1312-15) Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 22 of 42 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 157386.1 17 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Although there is no indication Hayes is a medical doctor, her vocational report appears to attempt a rebuttal to Dr. Haselwood’s IME and to Dr. Fraback’s opinions, and Hayes appears to draw her own conclusions about what R/Ls are support. There is also no indication what (if any) medical records Hayes reviewed to support her opinions, beyond Dr. Watrous’ January 11, 2016 “letter.” Hayes acknowledged : Dr. Haselwood “reviewed the medical documentation” in reaching his conclusions (781); the IME contradict[s]” Danchik’s FCE (787); and Dr. Fraback concurred with the IME. However, without mentioning that Dr. Fraback initially found Espindola capable of “at least” occasional fingering, handling, and reaching, Hayes claimed he “changed” his opinion in July 2015 after the IME. (781) Hayes also offered no explanation for appearing to take issue with Dr. Fraback providing an updated opinion based on updated medical information, including an independent medical exam. (775-87) Hayes then offered specific purported work R/Ls that appear to go beyond even Danchik’s express conclusions--largely based, it appears, on Espindola’s pain complaints, and Danchik’s conclusory statement Espindola “may not return to work as in (sic) any category.” (783) Hayes construed Danchik’s report as making it “evident” Espindola was “disabled from any occupation,” and supporting that she was not capable of even occasional keyboarding. (Id.) Hayes also claimed Espindola is not able to “withstand” sitting up to 66 percent of the workday. (776) Contrary to Black’s TSA, Hayes opined the transferable occupations identified required “constant” (“66%-100%”) fingering and keyboarding. (781; 779) a. Dr. Fraback reviews updated records and Danchik’s Report. Dr. Fraback reviewed the updated medical records and Danchik’s report, and found the impairments noted in Danchik’s FCE were “more than would be expected based on…physical and laboratory findings.” In his January 30, 2016 report, Dr. Fraback opined Espindola could perform: the sitting requirements of a sedentary occupation; frequent reaching, handling, and fingering, alternating her activities throughout the day, and with the opportunity to periodically stand and stretch; and sedentary-level lifting requirements, including 10 pounds occasionally. (1306-07) b. Independent rheumatology physician consultant Dr. Matthew Burton reviews Espindola’s medical records, speaks to Dr. Watrous, and concludes Espindola is capable of full-time Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 23 of 42 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 157386.1 18 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP sedentary job duties with reasonable continuity. Standard also obtained an independent medical opinion, through a third party vendor, by a physician consultant, board certified in rheumatology and internal medicine: Dr. Matthew Burton. (1294; 1275-91) On February 22, 2016, Dr. Burton spoke to Dr. Watrous. Dr. Watrous, in turn, stated that he continued to treat Espindola for fibromyalgia, which remains “out of control”, and that he doubted she would ever be able to return to work. (1282) Dr. Burton reviewed labs from June 2012-January 2016 and found that while there were positive test results for ANA, SM, and RNP antibody in 2012, with Plaquenil treatment and subsequent retesting, all those immunologic markers “cleared and have never returned.” (1282) Dr. Burton found Espindola had a history of ITP (since 2000), and her platelet count had at times been slightly low, but not requiring treatment since 2012. (Id.) Labs did not show significant abnormalities, and “there has been no evidence of internal organ involvement by lupus.” (Id.) Dr. Burton found Espindola’s reported symptoms of “severe fatigue and severe pain would not be compatible with a diagnosis of treated lupus but…are compatible” with a fibromyalgia diagnosis. (1283) However, the medical records failed to document, at any point, “measurable evidence that [she] was unable to perform fulltime sedentary work activity.” (Id.) Dr. Burton found “no objective evidence of any joint inflammation or synovitis, no evidence of any objective damage to any joint, no neurological findings of any significance nor any evidence of systemic inflammation that would support her claim of severe pain or fatigue.” (Id.) Dr. Burton found it “noteworthy” Espindola “virtually always rates her pain at the highest possible level and her fatigue at the highest possible level.” (Id.) However, she was able to perform a two-day vocational assessment (with Rodriguez) and type 64 words per minute, but stopped, complaining of hand pain. (Id.) Espindola “reports joint pain,” physical exams did not show synovitis. (Id.) Dr. Burton also noted Dr. Haselwood’s IME indicated Espindola had “exaggerated pain responses on exam.” (Id.) Dr. Burton found absent measurable evidence to the contrary, Dr. Haselwood “rightly concluded that [Espindola] is able to perform sedentary job duties on the computer.” (1284) Among other things, Dr. Burton found the comment Danchik’s FCE that Espindola was unable to climb up or down one flight of stairs (1312) unsupported, noting a lack of evidence of muscle Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 24 of 42 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 157386.1 19 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP weakness or deconditioning, among other things. (1284) Dr. Burton found the FCE indicated Espindola “had no objective problems with her muscles or joints or nerve[s] to her hands. She had normal hand grasp.” (Id.) Dr. Burton concluded that as of July 30, 2015, Espindola “was able to work on a fulltime basis with reasonable continuity[.]” (1285) c. Standard obtains a vocational review. Standard requested review of Hayes’ report, and which considered the R/Ls Dr. Haselwood and Dr. Fraback found supported. (765-74) (Dr. Burton did not identify specific R/Ls from full- time sedentary work.) In her April 4, 2016 report, VCM Kim Korn noted Black’s June 2015 TSA identified three alternative occupations (including two separate Claim Examiner occupations), while Hayes addressed two. (766) Moreover, Hayes relied on a table indicating the Claim Examiner occupation requires “Interacting with Computers” 80% of the time, and the Systems Analyst occupation requires it 90% of the time. (Id.) Korn found it “critical” those percentages refer to an “Importance Scale” with regard to the work activity, not the amount of time spent performing the particular activity. (Id.) Korn found all three occupations require frequent (not constant) fingering (33-66% of work day); and each occupation includes a number of material duties that do not require typing (e.g. a Systems Analyst is required to work with others to analyze operational procedures; a Claim Examiner reviews contracts and other documents, and speaks with claimants, attorneys, and others, both in person and over the telephone). (766-67) Korn also found the alternative occupations were not identical to Espindola’s Own Occupation, and while the Systems Analyst occupation may be “similar in nature” given the technology focus, the Material Duties of the Claim Examiner occupations differed from Espindola’s Own Occupation. (766) Notwithstanding lack of medical support for Hayes’ “sitting” preclusion, Korn noted for each alternative occupation, a sit/stand workstation could be utilized. (767) Korn concluded Espindola was capable of performing the alternative occupations noted in Black’s June 2015 TSA, and the occupations met the Policy’s wage requirement. (768) d. Standard upholds the denial of ongoing LTD benefits. On April 20, 2016, Standard upheld its decision. Among other things, Standard’s decision letter discussed medical records, Danchik’s FCE, Hayes’ report, and Policy requirements, including Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 25 of 42 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 157386.1 20 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Proof of Loss provisions. (1669-80) Standard noted that Hayes appeared to base most of her R/L conclusions on her interview of Espindola and Danchik’s FCE. (1671) Noting Espindola repeatedly reported 10/10 pain levels to Dr. Watrous and his staff, Standard found this factor was not a reliable measure of Espindola’s ability to work. (1672, 1677) Moreover, Dr. Burton’s peer review and Dr. Haselwood’s IME noted pain complaints incompatible with exam findings. ( 1672- 75) Standard discussed Dr. Haselwood’s IME, which concluded Espindola was able to perform full-time sedentary work with a reasonable expectation of continuity; and that while she was precluded from moderate-to-heavy lifting/carrying and constant manual exertion or power gripping, she could perform frequent fine hand movements and fingering. (1672-73) Standard also discussed Dr. Burton’s findings--including bases for disagreeing with Danchik’s FCE and Dr Watrous’ January 2016 note. Standard explained that Dr. Burton found Espindola was able to perform full-time sedentary work with reasonable continuity. (1674-76) Moreover, under the Policy, Espindola’s or Dr. Watrous’ statements that a certain condition precludes work must be adequately substantiated by medical documentation. (1674) Standard explained that while it acknowledged and considered such statements, it disagreed with them. (1676) Standard explained its review of the medical records did not support that Espindola had (or was reporting to her physicians) disabling side effects of medications, much less side effects that in and of themselves cause “disability,” as Espindola argued on appeal. (1677) Standard also discussed Kim Korn’s vocational analysis, and concluded the three alternate, sedentary occupations identified in Black’s June 2015 TSA--which require frequent (not constant, as Hayes argued) fingering--remained appropriate and met the Policy’s wage and labor market requirements. (1677-78) III. ARGUMENT. A. Under a De Novo Standard, Espindola Must Prove Entitlement to LTD Benefits By a Preponderance of the Evidence and Based on the Administrative Record. Pursuant to the Court’s Order, the parties have filed cross-motions for summary judgment. Summary judgment is appropriate where the Court is satisfied that “there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where, as on Standard’s motion, the burden of persuasion at trial rests on the non-moving Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 26 of 42 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 157386.1 21 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP party (Espindola), the moving party may satisfy Rule 56’s burden of production by (1) submitting evidence “that negates an essential element of the nonmoving party’s claim” or (2) demonstrating to the Court “that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). Standard respectfully requests the Court convert this briefing to a motion for judgment under Federal Rule of Civil Procedure 52, and the hearing into a bench trial on the AR. A de novo standard of review applies in this case. 08/10/16 Order re Stip. (ECF Doc. 15). Espindola’s Motion does not cite Rule 56. Rather, she seeks a ruling on the merits, and based on de novo review, as to whether she “was disabled” under the Policy, and also asks the Court to determine credibility, i.e. to evaluate “conflicting evidence” (Mot. at 7:7-11.) This suggests reliance on Rule 52. Standard contends Plaintiff has not met her burden, and judgment should be entered in its favor. See Randall v. Metropolitan Life Ins. Co., 2017 WL 476404, at *16 (N.D. Cal. 2017) (stating, where parties’ stipulated to de novo review and filed cross-motions for summary judgment, court would conduct a bench trial pursuant to Rule 52); Hoskins v. Bayer Corp. & Business Servs. Long Term Disability Plan, 564 F. Supp. 2d 1097, 1099 n.1, 1103 (N.D. Cal. 2008) (construing cross-motions for summary judgment as motions for judgment under Rule 52). Espindola asserts a claim under ERISA § 1132(a)(1)(B). (See Compl. at 3:15-21.) ERISA allows a plan participant to bring a civil action to recover plan benefits. 29 U.S.C. § 1132(a)(1)(B); Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). A court employing de novo review in an ERISA case “simply proceeds to evaluate whether the [claim] administrator correctly or incorrectly denied benefits….” Viale v. Aetna Life Ins. Co., 2011 WL 3736239, *2 (C.D. Cal. 2011) (citation and internal quotation marks omitted). “When conducting a de novo review of the record, the court does not give deference to the claim administrator’s decision, but rather determines in the first instance if the claimant has adequately established that he or she is disabled under the terms of the plan.” Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1295-96 (9th Cir. 2010). Generally, “only the evidence that was before the [claim] administrator at the time of determination should be considered.” Opeta v. Nw. Airlines Pension Plan for Contract Employees, 484 F.3d 1211, 1217 (9th Cir. 2007). Here, that evidence is contained in the AR. See supra n. 1. Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 27 of 42 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 157386.1 22 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP As the claimant, Espindola bears the burden of establishing by a preponderance of evidence her entitlement to contract benefits (i.e. that she was disabled under the terms of the Policy during the relevant claim period), even when (as here) benefits were terminated after an initial grant. Muniz, 623 F.3d at 1294, 1296; Wiley v. Cendant Corp. Short Term Disability Plan, 2010 WL 309670, *7 (N.D. Cal. 2010). The burden is not on Standard to disprove disability or to establish Espindola is not disabled. Lawrence v. Life Ins. Co. of N. Am., 144 F. Supp. 3d 1140, 1145 (C.D. Cal. 2015). In a trial on the record, unlike on summary judgment under Rule 56, the Court can “evaluate the persuasiveness of conflicting testimony and determine which is more likely true.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999). Indeed, Plaintiff asks this Court to undertake such an evaluation. (See Mot. at 22:11-12 and n.2) (citing Kearney). B. Espindola Cannot Meet Her Burden of Establishing That She Is Entitled to Ongoing LTD Benefits Under the Terms of the Policy and Based on the AR. Espindola has failed to meet her burden of proving by a preponderance of the evidence that as of July 30, 2015 (the date LTD benefits were discontinued) she was disabled under the terms of the Policy; i.e. that she was “unable to perform with reasonable continuity the Material Duties of Any Occupation”, as defined in the Policy. (14) Moreover, as Standard explained to Espindola, payment of benefits while it continued its Any Occupation investigation did not amount to acceptance that Espindola did, in fact, meet the Policy’s Any Occupation definition. (1744) Espindola’s Motion overlooks a key point: the Policy not only requires her to provide ongoing Proof of Loss (i.e. continued disability), it also expressly provides that Standard “may require proof of physical impairment that results from anatomical or physiological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” (45) (Emphasis added) In a recent ERISA matter, another district court found that the same proof of loss policy language and same policy definition of “Disabled from all occupations” “demonstrates that objective evidence is required to prove a disability.” Lopez v. Standard Ins. Co., 2017 WL 532119, at *19 (M.D. Fla. 2017), report and recommendation adopted, 2017 WL 519258 (M.D. Fla. 2017) (emphasis added). “Accordingly, subjective complaints of pain, although they may not be ignored in reviewing the evidence, will not, alone, demonstrate that a plaintiff is Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 28 of 42 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 157386.1 23 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP unable to perform work under the plan.” Lopez, 2017 WL 532119, at *19 (citations omitted). Standard did not “ignore” Espindola’s subjective complaints. Rather, three physician consultants and an IME found support for certain R/Ls consistent with sedentary capacity based on the medical information, including certain self-reported complaints. That the physician consultants disagreed with Espindola and her consultants does not amount to “ignoring” Espindola’s complaints. (See also 1676 [04/20/16 decision letter: “We acknowledge that neither Ms. Espindola nor her physicians believe she is able to work, though we do not agree with these statements.”].) Espindola’s argument that Standard based its denial “only” on a lack of objective evidence not only overlooks Policy requirements; it mischaracterizes evidence in the AR and disregards that the Court’s review is de novo. Viale, 2011 WL 3736239, *2. Espindola also confuses objective evidence of a condition (i.e. diagnosis) with objective evidence of an impairment. Cf. Holifield v. Unum Life Ins. Co. of Am., 640 F. Supp. 2d 1224, 1237-38 (C.D. Cal. 2009)5 (insurer did not reject claim based on dispute insured suffered from chronic fatigue syndrome, but because “it disputed the impact of CFS on her ability to work”; granting judgment for insurer who required objective evidence of disabling effects of subjective illness). Espindola’s 2016 appeal makes clear her focus is on one treating physician: Dr. Watrous. Espindola stopped seeing rheumatologist Dr. Lemon in 2012 (1618), and submitted no OVNs from Dr. Verma with her January 2016 appeal (1298). Her Motion does not cite any OVN by Dr. Verma more recent than February 2013 (Mot. at 7:8), more than two years before Standard denied benefits under the Any Occupation definition. Sidestepping Policy requirements and ERISA, Espindola now argues her “self-reported symptoms” should be “combined with” her diagnosis, Dr. Watrous’ conclusory “disabled” opinion, her “work history,” FCE, and an SSDI notice she first provided in litigation. (Mot. 22:16-23:11) These arguments lack merit. More fundamentally, the medical evidence does not establish disability from Any Occupation. 5 This was the case even though there is no indication the policy included the same proof of loss requirements as Standard’s Policy here. Cf. Holifield, 640 F. Supp. 2d at 1227. Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 29 of 42 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 157386.1 24 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP 1. A Symptom or Diagnosis Alone Does Not Establish Disability. While Dr. Watrous indicated Espindola was diagnosed with lupus and (some time later) fibromyalgia, this alone is not enough to establish disability. Merely because “a person has a true medical diagnosis does not by itself establish disability.” Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 880 (9th Cir. 2003) (overruled on other grounds in Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006)). See also Arko v. Hartford Life & Accident Ins. Co., 672 Fed. Appx. 693, 694 (9th Cir. 2016) (“Hartford does not dispute that [the plaintiff] had multiple sclerosis (MS) in 2000, but a diagnosis of MS alone does not automatically amount to a finding that a claimant is disabled; the claimant must also establish that his condition renders him unable to perform an essential function of his job.”). Likewise, the Policy’s definition of Disability focuses on a claimant’s functionality, and not simply the existence of a diagnosis or symptoms. (14) Standard did not deny “Any Occupation” benefits based on a determination Espindola does not have a lupus or fibromyalgia diagnosis or certain symptoms; rather, Standard determined the medical evidence failed to support that Espindola had R/Ls that prevented her from performing the Material Duties of Any Occupation she is qualified to perform. (1674; 1677-78) Espindola’s position appears to be that as long as she reports 10/10 subjective pain and/or fatigue to her doctor, who in turn records those complaints in his office notes, Standard is required to pay LTD benefits. (See Mot. at 22:18-23:8.) None of the cases Espindola string-cites stand for that proposition; nor do they state that “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”, see Mot. at 23:1-3, in an ERISA case. In Marcus v. Califano, 615 F.3d 23, 27 (1979), the court stated, “In the instant case, the subjective evidence of appellant’s pain, based on her own testimony and the medical reports of examining physicians, is more than ample to establish her disability, if believed.” (Emphasis added.) But that is a 37-year-old Social Security disability benefits case. The Supreme Court has long since held that the treating physician rule, according special deference to treating physician opinions, does not apply in an ERISA matter. See infra pp. __ . Likewise, and while Palmer v. Univ. Med. Group, 994 F. Supp. 1221 (D.C. Or. 1998) noted the lack of objective evidence can be relevant in an ERISA case, id. at 1233, Palmer also “utilized Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 30 of 42 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 157386.1 25 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP a treating physician rule prior to the Supreme Courts admonition against such use in Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825…(2003).” Disanto v. Wells Fargo & Co., 2007 WL 2460732, *10 (M.D. Fla. 2007) (emphasis added). Espindola’s apparent position would in effect mandate payment of disability benefits, even in the face of contrary medical evidence, and would impose burdens on ERISA administrators inconsistent with their obligations under ERISA. Independently, Espindola’s argument also flies in the face of the Policy’s requirement for objective proof of loss, and none of the cases she cites include similar proof of loss provisions, or, for that matter, an IME supporting the termination of benefits, among other factual distinctions.6 See, e.g., Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 896, 905-06 (9th Cir. 2016) (citing Plan language; noting lack of IME or other basis for discounting subjective R/Ls as exaggerated; but also remanding to ERISA administrator to consider additional evidence of mental limitations after finding that the record did not clearly establish benefits should have been awarded); Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 641, 644 (7th Cir. 2007) (citing policy language; finding disputed issues as to whether plaintiff was disabled); Hawkins v. First Union Corp. Long Term Disability Plan, 326 F.3d 914 (7th Cir. 2003) (no discussion of proof of loss policy provisions); Bledsoe v. Metropolitan Life Ins. Co., 90 F. Supp. 3d 901, 903, 910, 914, 917 (C.D. Cal. 2015) (citing policy language; noting lack of IME); Gallegos v. Prudential Ins. Co. of Am., 2017 WL 2418008, *2, 9 (N.D. Cal. 2017) (citing policy language; noting lack of IME); Leetzow v. Metropolitan Life Ins. Co., 2016 WL 7324092, *1-2, *9 (C.D. Cal. 2016) (citing policy language; noting that the policy at issue did not require objective evidence); Jahn-Derian v. Metropolitan Life Ins. Co., 2016 WL 1355625, *1 (C.D. Cal. 2016) (citing policy language; noting that policy at issue did not require objective evidence). If anything, the cases Espindola relies upon only underscore that need for a case-by-case determination, based on the policy and facts at hand. 6 Among other things, several of the cases also applied abuse of discretion review, and not a court’s determination, under de novo review, “in the first instance if the claimant has adequately established that he or she is disabled under the terms of the plan.” Muniz, 632 F.3d at 1295-95. Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 31 of 42 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 157386.1 26 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP 2. Standard Appropriately Relied Upon the Opinions of an IME, Two Physician Consultants, and Multiple Vocational Reviews, and No Special Deference is Owed to Espindola’s Treating Physician. Standard is not required to accept Espindola’s self-reported complaints at face value, even if reflected in doctor notes. Nor could it. “Under ERISA, an administrator is not free to accept a conclusion in a medical report without considering whether that conclusion follows logically from the underlying medical evidence”, but is instead “duty bound to conduct its independent investigation of [an insured’s] disability claim.” Seleine v. Fluor Corp. Long-Term Disability Plan, 598 F. Supp. 2d 1090, 1101 (C.D. Cal. 2009), aff’d, 409 F. Appex. 99 (9th Cir. 2010) (internal quotation marks and citation omitted). Additionally, an ERISA claims administrator is “not required to accept the opinions of [the plaintiff’s] treating physician or one hired by her lawyer.” Seleine, 598 F. Supp. 2d at 1101 (citing Black & Decker v. Nord, 538 U.S. 822 (2003)). The same holds true for friend/family support letters, which are not medical evidence, although Standard considered them as well. Cf. Seleine, 598 F. Supp. 2d at 1094, 1101-02 (granting judgment for defendant despite co-worker and family affidavits, correspondence from plaintiff to her supervisor regarding her physical problems and need for work accommodations, and treating physician records that primarily documented subjective complaints; as to the latter: plaintiff’s “attempts to elevate these notes of a patient’s self-report to the status of ‘findings’ is inappropriate”) Consistent with the Policy and ERISA, Standard considered whether the opinions received from Dr. Watrous, Espindola, and her vocational consultants where supported by the medical and vocational information in the record as a whole, and in light of Policy requirements. This resulted in a decision favorable to Espindola during her appeal of the termination of “Own Occupation” LTD benefits. In October 2013, rheumatology physician consultant Dr. Fraback concluded, based on then-available medical documentation, that Espindola was capable of sedentary work with “at least” occasional fingering and handling, i.e. the available information supported that she may, indeed, have greater functionality. (166) (Emphasis added). While an initial vocational review indicated (per the DOT) that Espindola’s Own Occupation required such activities on an occasional basis (i.e. supported the claim closure) (1238-4), Standard considered additional Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 32 of 42 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 157386.1 27 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP information Espindola’s attorney submitted during her appeal in 2013. This included a “Work Conditions” profile not part of the JD for Espindola’s position that Standard received from DST at the outset of Espindola’s claim. (905; compare to 1242 [JD received from DST in 11/2012].) In December 2013, after an additional vocational review determined (based on research that also included telephone contacts) that Espindola’s Own Occupation required frequent to constant fingering and handling, Standard reopened Espindola’s claim. (898; 483) This is in stark contrast to the “vocational” information Espindola submitted during her 2016 appeal of the denial of “Any Occupation” benefits: advocacy reports from Danchik and Hayes, obtained at counsel’s referral, and which appear to draw conclusions based primarily (if not entirely) on Espindola’s self-reports. Dr. Fraback did not, as Espindola argues, opine prior to the IME that she was “disabled by” her symptoms. (Mot. at 23:16-17.) Rather, Dr. Fraback found that specific R/Ls were supported based on the available medical information, after which Standard obtained a vocational opinion. Moreover, the R/Ls Dr. Fraback found supported in each review were not coextensive with Dr. Watrous’ opinion that Espindola is unable to work or return to a “typing job” or unable to work. Espindola also disregards that her first vocational consultant--Christine Rodriguez, who conducted what Espindola (but not Rodriguez) calls an “FCE”--found Espindola “may have exaggerated her reported pain levels.” (173) (Emphasis added.) Rodriguez is not the only consultant and/or examiner to note possible exaggeration. In May 2015, independent medical examiner Dr. Haselwood noted “inconsistent and nonphysiologic” behavior during the soft tissue portion of the exam; found that Espindola was able to ambulate, change posture, and perform other activities without obvious limitation; and concluded that Espindola’s complaints of severe and intractable levels of fatigue, musculoskeletal pain, and dysfunction were “quite disproportionately high relative to her observed demeanor and function…and her relatively benign physical findings.” (1623; 1625) Dr. Fraback found that Espindola’s pain and fatigue complaints were beyond what would be expected given her exam and lab findings. (165) In early 2016, independent peer reviewer Dr. Burton found it “noteworthy” that Espindola “virtually always rates” her pain and fatigue “at the highest possible level,” noted exaggerated responses during her IME, and found that evidence on exam failed to support her claim of severe pain or fatigue. (1283) Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 33 of 42 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 157386.1 28 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP Standard’s “Any Occupation” decision is supported by at least two physician consultants (Dr. Fraback and Dr. Burton) and Dr. Haselwood (IME) all of whom, like Dr. Watrous, are rheumatologists. These physicians reviewed available medical information; and independently concluded Espindola was capable of sedentary work, with up to frequent fingering and fine hand movements and exerting up to 10 pounds of force occasionally (Dr. Haselwood and Dr. Fraback). None found support for total preclusion from work, or “restrictions” regarding other activities that Espindola now emphasizes (e.g. specific and/or severe sitting/standing restrictions). Dr. Fraback found Espindola could perform sedentary level sitting requirements. (1306-07) While Dr. Fraback concluded after the IME and after reviewing updated medical records that Espindola was capable of up to frequent fingering, handling, reaching and keyboarding (Id), he had previously indicated she may have greater than “occasional” capacity for these activities (166). This is not, as Espindola seems to insinuate, an outright “change” (or about-face) of opinion. It is consistent with, and stems from, Dr. Fraback’s earlier determination, based on review of then-available medical information and Rodriguez’ report, that Espindola could perform such activities on “at least” an occasional basis. And to the extent there is any “change” in opinion, it was rationally based upon new medical information--including, but not limited to, an in-person, independent medical exam of Espindola. Any challenge by Hayes (or Espindola) to this well-supported, updated conclusion lacks merit. During her 2016 appeal, Espindola also relied on updated OVNs and, in her words, “letters” from Dr. Watrous. Dr. Burton’s independent peer review included a peer-to-peer call with Dr. Watrous, whose opinions Dr. Burton appropriately considered in reaching his own (different) conclusion. Faced with an IME that does not support her position, Espindola claims the independent medical exam should have included a typing test. (Mot. at 14:23-24) She offers no authority that this is the proper scope of an IME and, more fundamentally, shirks her own burden of proof with this argument and the de novo standard of review in this case. See, e.g., Inciong v. Fort Dearborn Life Ins. Co., 570 F. Appex. 724, 726 (9th Cir. 2014) (affirming judgment for insurer despite argument that defendant “should have conducted an independent in-person medical examination or a functional capacity evaluation” rather than rely on a “pure-paper” review by medical consultants, and noting that the district court employed de novo review, thus did not review insurer’s “exercise Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 34 of 42 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 157386.1 29 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP of discretion and decision-making process”); Lawrence, 144 F. Supp. 3d at 1140-45 (because ERISA claimant bears burden of proof, insurer “had no obligation to conduct an examination of [claimant] in order to prove that he is not disabled.”) (citation omitted); Kushner v. Lehigh Cement Co., 572 F. Supp. 2d 1182, (C.D. Cal. 2008) (finding “contrary to the law” plaintiff’s argument that insurer should have deferred to his treating physician’s opinion of disability because insurer did not conduct “testing” or an in-person exam). In short, Standard was not required to order additional tests to disprove disability. Cf. Santos v. Quebecor World Long Term Disability Plan, 2009 WL 1362696, *5 (E.D. Cal. 2009) (failure to order FCE when insurer was under no requirement to do so “reveals only that it chose not to do so.”) Espindola’s argument that Dr. Haselwood “offered no objective test findings” (Mot. at 14:21) includes no support, and it is unclear what she means. While Drs. Fraback, Haselwood, and Burton disagreed with Dr. Watrous about Espindola’s supported R/Ls, on de novo review, the Court can “evaluate the persuasiveness of conflicting testimony and decide which is more likely true.” See Kearney., 175 F.3d at 1095 (9th Cir. 1999). The possible symptom exaggeration noted by at least four consultants--two of whom (Rodriguez and Dr. Haselwood) evaluated Espindola in person--is underscored by Espindola’s repeated, across-the-board 10/10 self-ratings to Dr. Watrous, beginning in February 2013--shortly after Standard first closed her claim, and around the time she separated from DST. Espindola made these incredible complaints even though her own physicians, multiple physician consultants, and Dr. Haselwood noted she had mild lupus, with stable (or “normal”) lab results after June 2012. Moreover, while repeatedly complaining to Dr. Watrous of 10/10 pain level, Espindola at times denied joint pain to Dr. Verma, including when she had a physical because she wanted to adopt another child, e.g. (361) and told Dr. Haselwood during the May 2015 IME that her pain ranged from 7-10, and was an “8” that day (1618-19). These inconsistencies also undercut Dr. Watrous’ January 2016 notes (or “letters”), which appear to simply adopt her self-reported limitations. The Court is not obligated to accept statements of “total disability,” subjective complaints, or self-reported “restrictions” at face value, even if incorporated into letters or notes from Espindola’s physician--to whom no special deference is owed. See, e.g., Nord, 538 U.S. at 825, 834 (“We hold that plan administrators are not obligated to accord special deference to the opinions Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 35 of 42 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 157386.1 30 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP of treating physicians.”);7 see also id. at 834 (“[N]or may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation”);8 Kushner, 572 F. Supp. 2d at 1191-92 (“Plaintiff claims that his subjective complaints should be accepted at face value. The rule is to the contrary.) Dr. Watrous’ January 2016 opinion, and his statement to Dr. Burton that Espindola’s fibromyalgia was “out of control,” not only lack support from underlying exam findings and notes; they are at odds with his earlier failure to complete a Rheumatology and Connective Tissue Physicians Report. That report, in turn, asked for objective evidence of (among other things) synovitis, joint deformity, and impaired range of motion, and for specific lab findings, and at a time when (as Dr. Fraback noted) Dr. Watrous’ APS’s referred to lupus, not fibromyalgia. See Jordan, 370 F.3d at 878 (treating physicians’ opinions that plaintiff was disabled by fibromyalgia was “undermined” or less reliable where physicians failed to respond to ERISA administrator’s inquiries). To the extent Dr. Watrous believed he needed to defer to a physical therapist for the report, this too undermines the basis for his opinion that Espindola is unable to work. To the extent Espindola contends Rodriguez’ 2013 vocational evaluation took the place of the RCT report, as noted above, Rodriguez indicated possible symptom exaggeration and her report appears to refer to “capacity” at the exam based on when Espindola took “pain breaks,” without an opinion on ongoing R/Ls. Espindola’s pain and other self-reported complaints are not “objective” findings and/or conclusive “proof” of total disability under the Policy simply because they are then noted in a treating physician’s OVN or support letter. See, e.g., Leipzig v. AIG Life Ins. Co., 362 F.3d 406, 409 (7th Cir. 2004) (“Most of the time, physicians accept at face value what patients tell them 7 Espindola relies on several cases that predate the Supreme Court’s decision in Nord, and which also arose in the Social Security disability context. While Espindola acknowledges that, under Nord, the “treating physician” rule does not apply in the ERISA context, to the extent she implies these cases require Standard or the Court to give special deference or weight to her treating physicians’ opinion Nord indicates the contrary. See Jordan, 370 F.3d at 879 (stating that Nord “quite plainly holds that a treating physician’s opinion gets no special weight and can be rejected on the basis of reliable evidence with no discrete burden of explanation”) (citation omitted). 8 The same is true of the February 2013 letters from Dr. Watrous’ PA and Dr. Verma; which were written more than two years before the discontinuation of benefits. Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 36 of 42 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 157386.1 31 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP about their symptoms; but insurers…must consider the possibility that applicants are exaggerating in an effort to win benefits….”); Martin v. Aetna Life Ins. Co., 223 F. Supp. 3d 973, 2016 WL 6997484, *10 (C.D. Cal. 2016) (“[S]ubjective complaints of pain conveyed to a treating physician are inherently self-serving.”; granting judgment for defendants where plaintiff alleged disability due to bilateral hand pain, among other issues); Seleine, 598 F. Supp. 2d at 1102 (“Treating physicians are more or less required to accept the representations of their patients, but [insurer], as an ERISA administrator, is not obligated to do so.”); Lopez, 2017 WL 532119, *24 (“[S]ubjective complaints do not become objective evidence merely because a doctor has written them down.”) As with Dr. Watrous’ conclusory statements, Danchik’s 2015 FCE report also appears largely based on Espindola’s self-reported pain. Even still, Danchik found that Espindola meets “Demand Minimum Functional Capacity” requirements for activities that include sitting continuously for 30 minutes, and bilateral reaching, grasping, and holding an object. However, “Vocational Rebuttal” consultant Hayes appears to extrapolate specific sitting and keyboarding limitations from Danchik’s report (though he did not provide them), and (despite no indication Hayes has medical training) opines that Espindola is “disabled from any occupation”--while also disregarding the Policy’s specific definition of “Any Occupation.” And while Danchik flatly concluded that Espindola was “not capable” of “lifting anything at all” or of even standing, this defies logic, let alone objective support in her medical records. Cf. Hans v. Unum Life Ins. Co., 2015 WL 5838462, at *7-8, 13 (C.D. Cal. 2015) (finding that insurer “rationally found” that cardiopulmonary exercise test, whose results were based primarily on plaintiff’s self-report, was “incredible in speaking to the disabling effect CFS had on Plaintiff”; affirming LTD termination). Dr. Fraback, Dr. Burton, and Dr. Haselwood’s opinions amply support Standard’s decision in this case. See, e.g., Hans, 2015 WL 5838462, at *13 (finding on de novo review, where insurer’s “medical examiners [IME and paper reviews] ultimately contradicted Plaintiff’s treating physicians and Plaintiff’s other medical support, [the insurer] had every right to rely on and give substantial weight to such opinions in making its final decision” to terminate LTD after several years). Two vocational analysts (Black and Korn) considered the R/Ls that the physician consultants and IME found supported, and determined at least three transferable, sedentary occupations existed, which-- Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 37 of 42 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 157386.1 32 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP contrary to Hayes’ arguments--do not require “constant” keyboarding. Espindola failed to meet her burden to show that she is disabled under the Policy’s Any Occupation definition. 3. Espindola Relies Upon Additional Unsupported Arguments and Distinguishable Authority. Espindola’s Motion repeatedly references “fatigue,” at odds with even the recent opinions she relies upon. For example, Dr. Watrous’ January 11, 2016 letter/OVN stated that Espindola reported remaining off work “due to inability to return to typing job.” (1323) While Dr. Watrous also stated in the subjective portion of his letter that “Fatigue has been an issue in regards to ability to focus,” he did not elaborate. (Id.) For the reasons noted above, this conclusory opinion does not support that Espindola is disabled under the Policy due to a fatigue “issue.” Nine days later, Dr. Watrous noted that Espindola reported chronic hand pain, aggravated by typing. (1326) Espindola also points to no formal cognitive or neuropsychological testing of issues focusing. And Danchik’s FCE Report, which Hayes in turn relied upon, does not mention “fatigue” at all. (1311-15) Espindola’s reliance on surveillance from May 2013 is misplaced. (Mot. at 8:21-26; 23:18- 19) That Espindola was not observed does not establish that she is disabled. Espindola was, however, observed and examined much more recently--at the May 2015 IME. Espindola cites no authority for her argument that seeking “workplace accommodations” provides “strong evidence” that she would return to work if her symptoms were not “severe.” Nor is there any logical correlation between the two, leading only to speculation. For example, other evidence in the AR indicates Espindola was considering adoption of a second child shortly before she ceased work, went for a physical with Dr. Verma, and denied joint pain. (361) Espindola’s “abseentism” argument is factually and legally unsupported, based on isolated OVNs near the time she ceased work and Dr. Watrous’ January 2016 note referring to her self- reported typing ability. (Mot. at 25:-11.) Nor did she exhaust administrative remedies on the issue. Espindola also argues that three recent lupus cases support her position. But that argument starts from the faulty premise that Standard denied Any Occupation benefits “only” because of a lack of “objective evidence of disability.” Once again, this not only misstates evidence in the AR, it also “conflates diagnosis with disability.” See Martin v. Aetna Life Ins. Co., 2016 WL 6997484, Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 38 of 42 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 157386.1 33 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP *9 (C.D. Cal. 2016) (addressing plaintiff’s argument that insurer “ignored substantial evidence because his treating physicians resoundingly concluded that he could not lift more than 75 pounds”; noting discrepancy between subjective hand pain complaints and inconsistent objective exams). Espindola also again disregards the Policy’s Proof of Loss provisions, which indicate objective evidence can be required. Moreover, each case is distinguishable. For example, none involved similar proof of loss provisions regarding objective evidence, and there was also no IME in Bledsoe or Gallegos. See Bledsoe, 90 F. Supp. 3d at 903, 910, 914, 917; Gallegos, 2017 WL 2418008, *2, 9; Yancy v. United of Omaha Life Ins. Co., 2015 WL 9311729, *14-15, 19-20 (C.D. Cal. 2015) (citing policy provisions and also expressly noting proof of loss provision included “no statement” regarding type of evidence required). Unlike here, Yancy also involved IMEs with conflicting results; on appeal the plaintiff submitted neuropsychological testing that showed “evidence of cognitive impairment”; and a peer reviewer concluded contrary to other medical evidence that the plaintiff did not have an SLE diagnosis itself. Yancy, 2015 WL 9311729, *10-12, 21. Dr. Haselwood did not opine that Espindola “might find it difficult to cope with” pain and fatigue symptoms to “get through” the workday. (See Mot. at 24:2-3.) Dr. Haselwood indicated Espindola had “some legitimate and objectively documented sources of musculoskeletal discomfort, fatigue, and dysfunction, which could be expected to limit some of her physical functionality….” (AR 1624) Dr. Haselwood also provided R/Ls that he found supported. This only further distinguishes Espindola’s claim from the lupus cases she relies upon--it demonstrates that Espindola’s diagnoses and self-reported complaints were considered. That a IME or physician consultant disagreed with Espindola’s or Dr. Watrous’ ultimate conclusions of complete incapacity does not mandate rejection of their opinions. The language Espindola cites, instead, came from Dr. Burton’s peer review, providing his own summary of Dr. Haselwood’s IME, and in which Dr. Burton also agreed with Dr. Haselwood (i.e. he “rightly concluded”) that Espindola was “able to perform sedentary job duties” absent measurable, i.e. objective evidence to the contrary. (1284) In other words, Dr. Burton, too, focused on the evidence in the record as a whole, not in denying that Espindola had a diagnosis or symptom, but in determining what R/Ls were supported. Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 39 of 42 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 157386.1 34 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP 4. Standard Is Not Required to Show Espindola’s Condition Improved. As the Ninth Circuit recognized, paying benefits in the past does not operate as an estoppel or transfer the burden of proof to the insurer. See Muniz, 623 F.3d at 1296-97 (also stating there was “no case law” supporting plaintiff’s contention that burden of proving disability should shift to claims administrator when it terminates benefits without providing evidence claimant’s condition improved or changed since initial award); see also Inciong v. Fort Dearborn Life Ins. Co., 570 F. Appex. 724, 725 (9th Cir. 2014) (affirming judgment for insurer where LTD was terminated 15 years after initial great). While Espindola acknowledges that the burden of proof does not shift, and that Standard is not required to pay benefits forever, by asking Standard to “point to” evidence of improvement, she in effect asks this Court to shift the burden. (Mot., 24:13-25:3.) This is improper. Moreover, Muniz merely indicated a previous benefit award “may be evidence relevant to the issue of whether the claimant was disabled and entitled to benefits at a later date….” Muniz 623 F.3d at 1296 (emphasis added), not that it “is” relevant, or that it is a “significant fact” that weighs against termination of benefits, as Espindola argues. Espindola, like the plaintiff in Muniz, also cites the Ninth Circuit’s decision in Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (9th Cir. 2008) to argue that evidence of “improvement” should be required. (See Mot. at n.11.) As the Muniz court explained, “Saffon did not shift the burden to the defendant, but rather held under the abuse-of-discretion standard that the defendant must conduct a ‘meaningful dialogue’ with the beneficiary regarding his or her claim before a final denial….” Muniz, 623 F.3d at 1296 n.3 (citing Saffon, 522 F.3d at 870-71). Here, in contrast, a de novo standard applies. Espindola overlooks a critical point: Standard approved and paid benefits under the Own Occupation definition of Disability, and terminated benefits when the definition changed to Any Occupation. In other words, Espindola’s claim was discontinued based on a change in the Policy provisions that applied to the claim. In contrast, the insurer in Muniz terminated benefits after more than 14 years of payments, and more than 12 years into the “any occupation” period. Muniz, 523 F.3d at 1292-93. The Ninth Circuit nevertheless affirmed judgment for the insurer. Id. at 1292. See also, e.g., LaVertu v. Unum Life Ins. Co., 2014 WL 1224736, *3, 7 (C.D. Cal. 2014) (benefits terminated approximately two years into period and after insurer indicated it did not anticipate a Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 40 of 42 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 157386.1 35 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP change in medical status therefore extended approval through year 2030). The remaining cases cited are similarly distinguishable or did not involve a change in definition of disability. Moreover, in focusing on lack of “improvement,” Espindola sidesteps that medical evidence, including the IME and physician consultant reviews based on updated medical records, assessed her current condition and found she had greater capacity, as Dr. Fraback indicated she may in his 2013 review. 5. The Social Security Disability Benefits Award Does Not Bind Standard. Finally, the Social Security Administration (“SSA”) Notice of Award from August 2014, attached as an exhibit to counsel’s declaration filed with Espindola’s Motion, does not fulfill Espindola’s burden of proof under ERISA and the Policy. Espindola first provided a copy during litigation; therefore the Award notice is not in the AR and should not be considered on de novo review. See Opeta, 484 F.3d at 1217. Regardless, the terms of the Policy, not SSA rules, govern, and Standard is not bound by the SSA’s determination. See, e.g., Kushner, 572 F. Supp 2d at 1193 (“Nor is [insurer’s] denial of benefits undermined by the decision of the SSA…. The Ninth Circuit has long held that such an award is not binding on a plan administrator in an ERISA case.”) (citation omitted); Wiley, 2010 WL 309670, *10 (plan administrator and court were not required to follow SSA’s disability determination; “The SSA makes its benefits determinations under different standards, and the Court does not have before it all of the evidence presented to the SSA.”) Moreover, Standard indisputably had information before it the SSA could not have had in 2014--including medical opinions by Dr. Fraback and Dr. Burton, Dr. Haselwood’s IME (nearly a year after the SSA award), updated medical records, and vocational opinions. Cf. Inciong, 570 Fed. Appex. at 725 (noting a lack of evidence that the SSA conducted a recent review of its decision to award benefits to plaintiff and, even if it had, the burden of proof would have rested on the SSA to prove plaintiff was no longer disabled whereas LTD policy provided plaintiff bore burden of proving entitlement to continued benefits) (citing 42 U.S.C. § 423(f)). The SSA is also bound by the “treating physician rule,” whereas Standard is under no obligation to accord special deference to Espindola’s treating physicians. See Kushner, 572 F. Supp. 2d at 1192. Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 41 of 42 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 157386.1 36 Case No. 2:16-cv-01301-JAM-CKD DEF.'S CROSS-MOT. FOR SUMMARY JUDGMENT AND OPP. TO PLAINTIFF'S MSJ LAW OFFICES MESERVE, MUMPER & HUGHES LLP IV. CONCLUSION. For the foregoing reasons, Espindola has not met her burden of proof. Standard requests the Court grant its Cross-Motion, deny Espindola’s Motion and enter judgment Standard’s favor. Dated: June 30, 2017 MESERVE, MUMPER & HUGHES LLP By: /s/ Linda M. Lawson Linda M. Lawson Attorneys for Defendant STANDARD INSURANCE COMPANY Case 2:16-cv-01301-JAM-CKD Document 28-1 Filed 06/30/17 Page 42 of 42