Hadar Meiri v. Hartford Life and Accident Insurance Company, No. 3:2016cv00103 - Document 40 (N.D. Cal. 2017)
Court Description: ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND DENYING MOTIONS TO STRIKE by Judge Jon S. Tigar granting 21 Motion for Summary Judgment; denying 24 Motion for Summary Judgment; denying 25 Motion to Strike; denying 30 Motion to Strike. (wsn, COURT STAFF) (Filed on 7/24/2017)
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Hadar Meiri v. Hartford Life and Accident Insurance Company Doc. 40 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 HADAR MEIRI, 7 Plaintiff, 8 v. 9 HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, 10 United States District Court Northern District of California 11 Defendant. Case No. 16-cv-00103-JST ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND DENYING MOTIONS TO STRIKE Re: ECF Nos. 21, 24, 25 12 13 Before the Court are Plaintiff’s and Defendant’s cross-motions for Summary Judgment, as 14 15 well as Defendant’s and Plaintiff’s motions to strike. ECF Nos. 21, 24, 25. The Court will grant 16 Plaintiff’s motion for summary judgment, deny Defendant’s motion for summary judgment, and 17 deny both motions to strike. 18 I. BACKGROUND Plaintiff Hadar Meiri (“Meiri”) brought this action under section 502(a)(1)(B) of the 19 20 Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), seeking to 21 recover long-term disability benefits under her Plan administered by Hartford Life and Accident 22 Insurance Company (“Hartford”). ECF No. 1. Meiri’s Work History and Alleged Disability1 23 A. 24 At the end of July 2014, Ms. Meiri was diagnosed with thyroid cancer. She was then the 25 Vice President, Human Experience Strategy Director for MediaVest USA (“MediaVest”), where 26 Meiri’s doctors note that “[h]er history is significant for depression and anxiety for which she has been seen under psychiatric care.” ECF No. 20-3 at 98. She takes medications for these conditions. Id. She does not, however, base her claim for disability on any mental health issues. See, e.g., ECF No. 20-1 at 10, ECF No. 20-2 at 40. 1 27 28 Dockets.Justia.com 1 she earned $165,000 annually. ECF No. 20-2 at 24-25. She has an M.B.A. and had worked until 2 her cancer surgery. Id. at 25. Ms. Meiri also has a history of Hashimoto’s Thyroiditis and 3 hypothyroidism. ECF No. 20-3 at 97-98. Meiri’s job at MediaVest required a “minimu[m] of 3 4 years of managing professional level employees[,] strong and proven strategic skills and the 5 ability to apply them in the development of marketing/communications solutions[, and a] strong 6 understanding of and ability to work w/ both qualitative and quantitate[v]e data.” Id. at 24. On 7 September 10, 2014 Meiri underwent a total thyroidectomy to address her thyroid cancer and her 8 secondary diagnosis of Hashimoto Thyroiditis. ECF No. 24-2 at 34. She experienced fatigue and 9 weakness after surgery. Id. 10 Meiri filed a claim for Short Term Disability (STD) benefits while recovering from the United States District Court Northern District of California 11 surgery. A December 4, 2014 medical review indicated she was “unable to work due to her 12 reported brain fog, poor memory, fatigue, poor focus for 2-3 months until meds adjusted.” It 13 concluded it was “reasonable that her cognitive difficulty (typical for hypothyroid) would preclude 14 job performance.” ECF No. 20-2 at 49. Meiri’s short term benefits were thus approved during her 15 post-surgery recovery until February 15, 2015. ECF No. 35 at 6. 16 17 18 B. Meiri’s Benefits Plan 1. Short Term Disability Meiri received short-term disability benefits while she recovered from surgery, paid from 19 September 17, 2014 until February 15, 2015, and her entitlement to those benefits is not in 20 dispute. ECF No. 20-1 at 20, 27. Hartford informed Meiri on February 12, 2015 that it would 21 begin investigating her eligibility for Long Term Disability benefits, and that “receipt of Short 22 Term Disability benefits does not necessarily mean that you will be eligible to receive Long Term 23 Disability benefits.” Id. at 20. 24 25 2. Long Term Disability Meiri’s Long Term Disability (“LTD”) Policy requires her to prove that throughout the 26 180-day Elimination Period (‘EP”), from September 10, 2014 through March 10, 2015 and 27 thereafter, her condition was so severe that she was precluded from performing the material and 28 substantial duties of her occupation. See ECF No. 35 at 6; ECF No. 20-4 at 12-13. Meiri’s Policy 2 1 pays core benefits at 40% of an employee’s prior monthly earnings, minus other income offsets, 2 after a claimant has satisfied the 180-day Elimination Period (“EP”). ECF No. 20-4 at 6. “The 3 Elimination Period begins on the day You become Disabled. It is a period of continuous 4 Disability which must be satisfied before You are eligible to receive benefits from Us. You must 5 be continuously Disabled through Your Elimination Period.” Id. at 13. “Disability or Disabled 6 means that You satisfy the Occupation Qualifier or the Earnings Qualifier as defined below.” Id. 7 at 12. 8 Occupation Qualifier 9 Disability means that during the Elimination Period and the following 36 months, Injury or Sickness causes physical or mental impairment to such a degree of severity that You are: 10 United States District Court Northern District of California 11 12 13 14 15 1) continuously unable to perform the Material and Substantial Duties of Your Regular Occupation; and 2) not Gainfully Employed. After the LTD Monthly Benefit has been payable for 36 months, Disability means that Injury or Sickness causes physical or mental impairment to such a degree of severity that You are: 16 1) continuously unable to engage in any occupation for which You are or become qualified by education, training or experience; and 17 2) not Gainfully Employed. 18 ECF No. 20-4 at 12. The Policy also limits benefits to 36 months for disability from a Mental 19 Disorder of any type or a condition primarily manifested through Self-Reported Symptoms. Id. at 20 18. To prove disability, the claimant must provide the following: 21 1) The date Your Disability began; 22 2) The cause of Your Disability; 23 3) The prognosis of Your Disability; 24 4) Proof that You are receiving Appropriate and Regular Care for Your condition from a Doctor, who is someone other than You or a member of Your immediate family, whose speciality or expertise is the most appropriate for Your disabling condition(s) according to Generally Accepted Medical Practice. 25 26 27 28 5) Objective medical findings which support Your Disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations standardly accepted in the practice of medicine, for Your disabling condition(s). 3 1 2 3 4 5 6 7 6) The extent of Your Disability, including restrictions and limitations which are preventing You from performing Your Regular Occupation. 7) Appropriate documentation of Your Monthly Earnings. If applicable, regular monthly documentation of Your Disability Earnings. 8) If You were contributing to the premium cost, Your Employer must supply proof of Your appropriate payroll deductions. 9) The name and address of any Hospital or Health Care Facility where You have been treated for Your Disability. 10) If applicable, proof of incurred costs covered under other benefits included in the Policy. 8 ECF No. 20-4 at 24. The employee must provide a signed authorization to obtain necessary 9 medical, financial, or other non-medical information to support the claim. Id. 10 United States District Court Northern District of California 11 12 13 The parties dispute whether Meiri has presented sufficient evidence to establish by a preponderance of the evidence that she qualified for long term benefits. C. Medical Evidence 1. Dr. Mielke 14 Dr. Lynne Mielke, a board-certified psychiatrist and neurologist, began treating Meiri on 15 June 12, 2014 and saw her every 2-4 weeks. ECF No. 20-3 at 271. Meiri notes that “Dr. Mielke 16 is certified by the American Board of Psychiatry and Neurology and is an expert in hormone 17 optimization.” ECF No. 29 at 8. 18 On December 22, 2014, Dr. Mielke noted that Meiri’s “[e]nergy level has improved since 19 just after surgery,” and that she could “now walk 25 minutes without . . . causing exhaustion,” but 20 that she continued to have “poor memory.” ECF No. 21-1 at 9. Hartford recorded in a report on 21 January 27, 2016 that Dr. Mielke had noted in an Attending Physician Report that observations on 22 January 7, 2015 and February 9, 2015 had shown “poor memory, fatigue, feelings of weakness 23 and being overwhelmed, crying spells . . . psychomotor retardation and poor recall.” ECF No. 20- 24 2 at 49. On November 10, 2014, Dr. Mielke documented Meiri’s self-reports of being fatigued, 25 overwhelmed, and unable to keep up in conversations. ECF No. 20-3 at 277. In a report Hartford 26 received January 28, 2015, Dr. Mielke stated “depression” as a secondary diagnosis, and wrote 27 that there were “no physical restrictions the issues are currently mental.” ECF No. 20-1 at 29. 28 Under “physical exam findings,” Dr. Mielke wrote that Meiri had “psychomotor retardation + 4 1 poor recall.” Id. Dr. Mielke noted that the treatment plan was “treat underlying infections and 2 hormone deficiencies,” and that Meiri “calls and emails several times daily.” Id. 3 In an Attending Physician’s Statement of Functionality from February 16, 2015, Dr. 4 Mielke stated that Meiri had no physical restrictions and could sit for 8 hours at a time, stand for 2 5 hours at a time, and walk for 2 hours at a time. ECF No. 20-3 at 272. In response to the prompt 6 “[e]xpected duration of any restriction(s) or limitation(s),” Dr. Mielke wrote “Unknown - this 7 patient has not responded to any intervention so far.” ECF No. 20-3 at 272. In response to the 8 question “[d]oes the patient have a psychiatric/cognitive impairment,” Dr. Mielke marked “yes” 9 and elaborated: “Depression, poor memory, feeling easily overwhelmed. She would be unable to 10 function in a work environment.” Id. By contrast, in a letter from Hartford on March 26, 2015, Dr. Mielke marked “no” in United States District Court Northern District of California 11 12 response to the question “do you feel her complaints of cognitive impairments are related to her 13 thyroidectomy?” ECF No. 20-3 at 81. Dr. Mielke also administered a CNS Vital Signs Report2 to Meiri on April 6, 2015. ECF 14 15 No. 20-3 at 82. Meiri scored in the 1st percentile in 10 categories, a percentile of zero in 3 16 categories, and the 37th percentile, 75th percentile, and 7th percentile in the remaining three 17 categories, respectively. Id. In five categories, the test indicated that Meiri’s results were possibly 18 not valid scores. Id. Other of Meiri’s test results were similarly poor. Id. at 82-84. An October 28, 2014 report on Meiri’s lab tests showed her TSH was low at .079, her 19 20 2 21 22 23 24 25 26 27 28 CNS Vital Signs (CNSVS) is a computerized neurocognitive test battery that was developed as a routine clinical screening instrument. It is comprised of seven tests: verbal and visual memory, finger tapping, symbol digit coding, the Stroop Test, a test of shifting attention and the continuous performance test. Because CNSVS is a battery of well-known neuropsychological tests, one should expect its psychometric properties to resemble those of the conventional tests upon which it is based . . . . [¶] Test-retest reliability (TRT) was evaluated in 99 [subjects] who took the battery on two separate occasions, separated, on the average, by 62 days; the results were comparable to those achieved by equivalent conventional and computerized tests. Concurrent validity studies in 180 subjects, normals and neuropsychiatric patients, indicate correlations that are comparable to the concurrent validity of similar tests. C. Thomas Gualtieri, Lynda G. Johnson, Reliability and Validity of a Computerized Neurocognitive Test Battery, CNS Vital Signs, 21 Archives Clin. Neuropsychology (7) 623-643 (2006). 5 1 Thyroid Peroxidase (TPO) Ab were high at 244, and her Thyroglobulin Antibody was high at 2 11.3. Her Free T4 was slightly high at 1.8. ECF No. 20-3 at 294. 3 On May 27, 2015, Dr. Mielke wrote a letter to Hartford providing further explanation about her physician’s statement. ECF No. 20-3 at 58. She wrote that she was not treating Meiri 5 for depression, but that it “was one of her symptoms of hormone imbalance. Her primary 6 diagnosis is hormone imbalance. Her symptoms are cognitive impairment (poor memory, easily 7 overwhelmed and confused, difficult[y] focusing) and fatigue/weakness. For these reasons I made 8 the statement on 2/18 that she is unable to return to work. Another correction (referencing 9 correspondence from the Hartford, 3/26). She can sit for 8 hours but cannot walk for 2 hours all in 10 one time. Secondly, with regard to the statement made on 3/26, her symptom onset and worsening 11 United States District Court Northern District of California 4 is clearly temporally related to the thyroidectomy surgery. I have prescribed thyroid replacement 12 and am still in the process of managing her levels and symptoms. I do not yet know why she is 13 not responding well to treatment and is having symptoms of cognitive impairment. On 4/6/2015 I 14 administered a neurocognitive assessment . . . which showed significant impairment.” Id. 15 (emphasis in original). 16 2. Dr. Liu 17 In Progress Notes on August 5, 2014, Dr. Chienying Liu, an endocrinologist, stated that 18 Meiri had “many symptoms that I cannot completely explain from thyroid point of view.” ECF 19 No. 20-3 at 100. On September 26, 2014 Dr. Liu reported that Meiri “has continued to have the 20 same symptoms as before surgery.” ECF No. 20-3 at 124. Dr. Liu noted that “[e]quilibrium is 21 established after 6 weeks,” but that “test results will give me clues if I need to change [the doses of 22 her medications] sooner.” Id. The report again noted that Meiri had “many symptoms that I am 23 not sure if related to thyroid status. An increased symptom load and decreased quality of life have 24 been observed in euthyroid patients with TPO positive Hashimoto’s thyroiditis. I encouraged her 25 to focus on the positive aspect[s] of her life and that we have done what we could from thyroid 26 point of view.” Id. at 125. Dr. Liu stated that he “reviewed TSH target” with Meiri and he 27 “recommend[ed] 0.1-0.5mlU/L” as Meiri underwent further monitoring. Id. 28 Dr. Liu stated on October 7, 2014 that she would be able to return to work without 6 1 restrictions on a full-time basis on November 1, 2014. ECF No. 24-2 at 34. On November 7, 2 2014, Dr. Liu noted that Meiri “continued to feel unwell.” ECF No. 20-3 at 125. The progress 3 notes included: 4 7 She was [on] Synthroid at her last visit. Since then she has seen Dr. Mielke who put her on Naturethroid 45mg bid. She is thinking about taking compound T3 slow release + T4. She has been on Naturethroid for a week and has not been feeling better. She reports worsening memory since surgery. She has continued to have fatigue. She is also currently followed by psychiatry and she does not think her current symptoms are due to her depression. Her psychiatry is waiting for her hormones to be stabilized. Her lab results while on Synthroid showed TSH 0.075. 8 Id. at 126. Dr. Liu noted that Meiri presented with fatigue and blurry vision at times. Id. She was 9 also “[p]ositive for sleep disturbance and dysphoric mood. The patient is nervous/anxious” and 5 6 she had “decreased memory.” Id. at 127. Tests showed “positive TPO and Tg AB.” Id. 11 United States District Court Northern District of California 10 Dr. Liu wrote: 12 13 14 15 16 I cannot attribute her symptoms to hormonal status. She has not felt improvement on Naturethroid which has a lot of T3, now, or in the past. I do not think T3 is the issue. I also disagree with the statement that ‘most people do not convert T4 to T3’. I have absolutely no experience in using the compounded T3 slow release. I explained to her that multiple randomized controlled studies have not shown T3 to have an added benefit although there may be a small subset [of] patients who had total thyroidectomy that may benefit. I cannot endorse Naturethroid or other desiccated thyroid hormone regimen as it has too much T3 that is not physiologic. Id. at 127. Dr. Liu also wrote: “I reviewed that TPO antibody will persist for some time, as well 17 as Tg antibody. Tg antibody should be done at the same lab to track progress and I expect the 18 19 20 21 level to decline after surgery if without any widespread disease. Her levels have.” Id. at 128. On February 6, 2015, Dr. Liu saw Meiri once again. The doctor noted Meiri “continues to have ‘no memory’ and with severe cognition issues. She feels exhausted and has no energy.” Id. at 129. The “Plan” stated that Meiri’s “Tg antibody has decreased and this is reassuring. Her neck 22 ultrasound findings are nonspecific . . . TSH is a bit low - this is the combination effect of T3 and 23 T4. Her TSH responded well to both Ithyroxine and T4/T3 combination. She did not feel better 24 25 26 27 on Nature throid . . . Her symptoms may not be related to her thyroid.” Id. at 131. None of Dr. Liu’s notes address Meiri’s ability to work. On June 19, 2015, Dr. Liu remarked that Meiri had “not been working because of her worse mentation after surgery.” ECF No. 21-1 at 91. Dr. Liu noted that, “[f]ollowing surgery, she 28 7 1 has continued to feel unwell, with memory loss, brain fog, feeling exhausted,” and that “regimen 2 has changed a few times.” Id. Dr. Liu also reported Meiri’s “TSH is quite suppressed,” and 3 “[h]er recent lab results continued to trend down.” Id. In November 2015, Dr. Liu noted that 4 “hyperthyroidism can impair[] cognitive function as noted by many of patients with Graves 5 disease,” but she “appear[ed] less unfocused today comparing to other visits.” ECF No. 20-1 at 6 93. Dr. Liu wrote with regard to Meiri’s Hashimoto’s thyroiditis that “[s]he has many symptoms 7 that I can not explain. I do not believe they are related to Hashimoto’s thyroiditis directly. She is 8 certainly at risk for other autoimmune disorders that may not be measures as easily as 9 Hashimoto’s thyroiditis.” Id. 10 On January 22, 2016, Meiri reported to Dr. Liu that she was “feeling slightly better for the United States District Court Northern District of California 11 first time. She also reports weight loss of 5 lbs. She is only on T4 25mcg and lowered her T3 to 12 20mcg bid . . . Her recent test results showed TSH still suppressed[,] Tg AB levels have continued 13 to trend down[,] ultrasound showed stability.” Id. at 94. 14 15 3. Dr. Farshchian In a March 12, 2015 report, Dr. Thalia Farshchian, a Naturopathic doctor, noted Meiri was 16 there “to address memory issues.” ECF No. 20-3 at 214. She wrote that Meiri reported “trouble 17 keeping track of tasks and easily forgets information,” that she “does not feel confident she is able 18 to work at an appropriate level,” and had “[d]rastic change in memory since thyroid surgery.” Id. 19 Dr. Farshchian noted “30 points on Mini Mental Status Exam” out of 30 and “Normal FOGS.” Id. 20 at 215. She also documented Meiri’s self-reports of “drastic change in her ability to recall and 21 stay on top of daily tasks.” Id. “Her recent thyroid labs showed that she is medicated to the point 22 her thyroid is too low and free T3 is too high. Her neuro exam was normal with the exception of a 23 pupillary light reflex. Clinically, memory issues are very common with thyroid imbalance and her 24 memory issues are likely a result of the stress of thyroid cancer and imbalanced thyroid hormone 25 levels.” Id. Dr. Farshchian did not comment on Meiri’s ability to work. 26 27 28 4. Dr. Griffin Meiri saw Dr. Jennifer Griffin on March 9, 2015. ECF No. 20-3 at 170. Meiri came “with a stack of lab reports from previous functional medicine and naturopathic work ups.” Id. at 176. 8 1 Dr. Griffin noted that Meiri was “alert & oriented x 3. Cooperative. Comfortable.” Id. at 178. 2 Psychologically, she was “oriented x 3, memory intact. appropriate mood and affect, normal 3 judgment and insight, normal speech.” Id. Dr. Griffin noted however, that the exam was “brief 4 today due to time dedicated to lab review, education and counseling.” Id. 5 With regard to Meiri’s fatigue, Dr. Griffin “[d]iscussed multiple possible causes and 6 contributing factors including chronic viral infection, adrenal fatigue, thyroid hormone imbalance, 7 [and] depression.” Id. She “[d]iscussed a need for better nutrition and consistency of food intake 8 to help support energy levels. Goal set for stabilizing blood glucose with adequate and balanced 9 nutrition before her typical 4 pm energy drop.” Id. She discussed starting Meiri on “1 gram fish oil daily for anti-inflammatory effects and mood support,” and “[d]iscussed mind body tools to 11 United States District Court Northern District of California 10 help with increased anxiety and tension.” Id. at 178-79. 12 5. Dr. Draisin 13 On June 30, 2015, Dr. Jeff Draisin wrote a letter to Hartford explaining that he had “been 14 working regularly as a cognitive functioning and fatigue consultant for Ms. Meiri since April 10, 15 2015. In this capacity [he] reviewed records of her other practitioners, including laboratory and 16 diagnostic study results and . . . read the supportive documentation they [provided] in support of 17 her disability claim.” ECF No. 20-3 at 59. He states that he is “writing to express my medical 18 opinion that she meets the conditions in your policy of disability - ‘continuously unable to engage 19 in the material and substantial duties of her regular occupation.’ This disability is objectively 20 defined in neurocognitive testing of 4/16/15 (indicating severe impairment in executive function 21 parameters. It is equally supported by the ongoing surveillance of her symptoms by her managing 22 practitioners, myself included.” Id. 23 Meiri also includes in the record an August 18, 2015 letter from Dr. Draisin in response to 24 questions from Hartford reviewer Dr. Kublaoui. ECF No. 21-1 at 6. Hartford states there is no 25 evidence this letter was received and was not part of Meiri’s original appeal. ECF No. 35 at 12, 26 n.6. In the letter, Dr. Draisin responds “yes” to the question “[i]s there objective evidence 27 (determined by testing) of cognitive impairment?” ECF No. 21-1 at 6. When asked the follow up 28 question of whether he believed this was related to Meiri’s thyroid disease, he replied “yes - firstly 9 1 timing of deficit is concurrent with thyroid disease. Secondly no other clear etiology. Thirdly not 2 unusual thyroid replacement therapy is not infrequently linked in [illegible] - even with acceptable 3 levels.” Id. 4 5 6. Hartford’s Notes On November 20, 2014, “Veronica” from Dr. Mielke’s office called Hartford to “advise 6 they put depression on her aps as one of her dr but clmt and dr want to keep the thyroid dx only as 7 she has another claim for her depression and they are only tx’ing her for her thyroid. she is going 8 to resend the aps with the depression dx taken off.” ECF No. 20-1 at 10. On April 1, 2015, Meiri called Hartford “to adv that DR Mielke called her about our 10 requests, and that diagnosis also noted depression which she states that is an error. clmt states that 11 United States District Court Northern District of California 9 she wants it to be known that she is not being trated for any depression and not the reasons she 12 isn’t able to do her work. clmt states wants us to understand and clarify that mental health is not a 13 reason she is unable to work has nothing to do with her and not her dx. she states depression is 14 not a dx for her. she states was put by mistake by one of Dr. Mielke staff and corrected 15 previously. clmt states that dx should be her thyroid issues, fatigue, memory, adrenal issues, 16 cognitive issues.” ECF No. 20-2 at 40. She told Hartford that her therapist is “just a support 17 system and has no relevance to this claim and her cognitive impairment.” Id. at 41. 18 Meiri points to Hartford’s Summary Detail Report[s] from January 27, 2016 to indicate 19 that her condition worsened after surgery. ECF No. 21 at 9. Those notes, however, indicate that 20 they are documenting Meiri’s subjective complaints as reported in a phone interview. See ECF 21 No. 20-2 at 69-70. Hartford’s file notes from a February 17, 2015 call indicate that Meiri stated 22 “cognitively she is not there, cannot remember things, cannot keep up with conversations, feels 23 that when lots of info that is over 30-45 min long will get blurry vision, and foggy and gets really 24 exhausted and cannot process it, she has to process data and do presentations . . . right now the 25 memory thing is very difficult[] and processing information.” Id. at 70. She stated she could walk 26 no longer than 15-20 mins. Id. Meiri also called Hartford on March 30, 2015 and told them that 27 her cognitive impairment was important, that it was “hard for her to walk more than 5-10 min as 28 she is exhausted,” and it was “hard for her to think because she is so exhausted.” Id. at 42. 10 7. 1 Dr. Meikle Peer Review Dr. A. Wayne Meikle (“Dr. Wayne”)3 prepared a peer review report of Meiri’s medical 2 3 records on April 14, 2015. ECF No. 20-3 at 64. He found that Meiri “was on replacement doses 4 of thyroid hormone, and was very nearly very well controlled . . . her free T-4 was 1.48, which 5 was within normal limits.” Id. Other tests were also normal. In addition, “[h]er complete blood 6 count was within normal limits,” but “her lipid panel was borderline abnormal.” Id. He stated 7 that Meiri had “applied for long-term disability benefits based on thyroid imbalance and adrenal 8 fatigue, which is not a diagnosis that is considered valid.” Id. at 65. He noted that Meiri’s 9 “thyroid function was near normal on October 30, 2014.” Id. Dr. Wayne spoke with Dr. Jennifer Griffin, one of Meiri’s attending physicians, on April 6, 10 United States District Court Northern District of California 11 2015. Id. Dr. Griffin had seen Meiri twice. She stated that while Meiri “had some anxiety and 12 some depression . . . she felt that her cognitive function was normal, and she did not find any 13 evidence that the patient was not functionally capable of conducting her work on a full-time basis 14 without restrictions.” Id. Dr. Wayne also spoke with Dr. Farshchian at 3:30 p.m. on April 6, 15 2015. She reported that “[s]he did a thorough examination and found no abnormalities, but she 16 did feel that the patient had fatigue and needed a rest, but she found no functional disabilities, 17 restrictions, or limitations.” Id. Dr. Wayne concluded that Meiri’s medical records “indicate that she has no physical 18 19 limitations, and therefore, could work unrestricted eight hours a day, five days a week.” Id. at 66. 20 His answers to the other questions presented to him supported this same conclusion. Id. 21 Meiri takes issue with Dr. Wayne’s notes regarding his phone calls with her doctors. Id. at 22 43. She states that Dr. Farshchian wrote to her in an email, “that is actually not what I said. I said 23 that at this time you are not able to properly function at work full-time. With proper treatment, 24 that could be re-evaluated in the future.” Id. Dr. Griffin also emailed with Meiri and said “When I 25 spoke briefly to the physician who called from the insurance company on 4/14, I told him I had 26 27 28 3 This case involves two physicians with almost identical last names. Dr. Lynne Mielke is Plaintiff's primary care provider, and Dr. Wayne Meikle is Hartford's medical consultant. The Court refers to Dr. Wayne Meikle as “Dr. Wayne” to avoid confusion. No disrespect is intended. 11 1 not determined the cause of your cognitive concerns and that I had only seen you twice at that 2 point. I relayed that you were seeing me for fatigue and cognitive complaints, but I could not 3 relay a cause or an opinion regarding your ability to work at that point. If you recall, when you 4 asked me about disability at your first visit, I stated I wasn’t comfortable confirming a need for 5 disability at that point.” Id. at 43. 6 In an addendum on April 20, 2015, Dr. Wayne wrote that there was “no additional 7 information that affects the previous recommendations. Evidence is lacking that neuro cognitive 8 inability to function affects her work and cognitive impairment is not documented as related to 9 thyroidectomy and thyroid hormone replacement.” ECF No. 20-3 at 68. 10 United States District Court Northern District of California 11 8. Dr. Kublaoui Peer Review Dr. Bassil Kublaoui’s review, completed August 13, 2015, noted thyroid function tests as 12 follows: 9/26/2014 TSH (thyroid stimulating hormone) 0.47 (0.45-4.12), FT4 18 (10-18). 13 01/27/2015 TSH of .1, FT4 .82 (.82-1.77), FT3 of 2.6 (2-4.4). 01/29/2015 TSH of 0.09 with a FT4 14 of 11. ECF No. 20-2 at 163. It states that Meiri’s endocrinologist “notes that her TSH and FT4 15 had responded well to thyroid hormone replacement with both Synthroid and nature thyroid and 16 that he believes that her cognitive symptoms may not be related to her thyroid. On 02/06/2015 no 17 changes were made in her thyroid hormone regimen.” Id. The report indicates that a March 9, 18 2015 “note from Dr. Griffin indicates that he was on levothyroxine plus slow release compounded 19 T3. Her fatigue is reported to have gradually worsened over two years despite thyroid hormone 20 supplementation. It notes that the fatigue had multiple causes including a chronic viral infection, 21 adrenal fatigue, thyroid hormone imbalance and depression. The office visit notes report 22 forgetfulness and difficulty paying attention. She has a long history of anxiety and depression on 23 Lexapro for four years, with a history of abuse from her father . . . An adrenal evaluation was 24 ordered with salivary cortisol and DHEA which was normal.” Id. 25 Dr. Kublaoui was not able to establish contact with Meiri’s attending physicians after 26 several attempts. He then faxed them questions about Meiri but received no responses. ECF No. 27 20-2 at 164. He did reach Dr. DeFilippis, a co-reviewer. Id. Dr. DeFilippis indicated that the 28 cognitive tests needed to be redone, and Dr. Kublaoui informed Dr. Filippis that Meiri’s endocrine 12 1 evaluations were normal. Id. Dr. Kublaoui noted he was “limit[ing] [his] evaluation to her endocrine conditions,” and 2 stated “[h]er thyroid hormone levels are in a desirable range for someone with a history of thyroid 4 cancer with a TSH at around 0.1. She has had normal FT4 and FT3 levels since her 5 thyroidectomy. From an endocrinologic standpoint, there are no restrictions or limitations on her 6 activities.” Id. at 165. While he “defer[red] the cognitive impairment questions to the clinical 7 psychologist,” he did say “that although untreated hypothyroidism can result in cognitive 8 impairment, appropriately treated hypothyroidism does not result in cognitive impairment. For the 9 dates in question the claimant’s thyroid function tests were normal. Therefore, her adequately 10 treated hypothyroidism did not result in cognitive impairment.” Id. He concluded that, in his 11 United States District Court Northern District of California 3 opinion, “the claimant does maintain the functional capability to consistently perform work duties 12 for eight hours per day 40 hours per week on a sustained basis. The claimant has fatigue of 13 unclear etiology which does not seem to limit her capacity to perform work duties.” Id. 14 On August 17, 2015, Hartford received a response from Dr. Meilke to Dr. Kublaoui’s 15 questions. ECF No. 20-2 at 179. Dr. Mielke stated there was objective evidence of cognitive 16 impairment, because “we performed a CNS vital signs computerized cognitive test and the patient 17 scored very poorly.” Id. Dr. Mielke also stated that she “[did] not know if her cognitive 18 dysfunction is exclusively from her thyroid condition. However her mental abilities declined 19 substantially after her thyroidectomy.” Id. In an addendum on August 21, 2015, Dr. Kublaoui 20 stated the new information from Dr. Mielke did not change the prior determination that there was 21 no evidence that cognitive dysfunction was related to Meiri’s thyroid or causing impairment. Id. 22 at 167. 23 24 9. Dr. DeFilippis Peer Review Dr. Nick DeFilippis also completed a review of Meiri’s file on August 13, 2017. ECF No. 25 20-3 at 7. He noted that Dr. Mielke’s January 27, 2014 report had noted Meiri “did not have 26 physical restrictions, and her issues were mental. She said the claimant would not be able to 27 return to work for six months.” Id. at 9. Dr. Filippis noted that the CNS test administered by Dr. 28 Mielke “would need to be followed up on with a more complete cognitive evaluation with effort 13 1 2 and validity measures.” Id. at 10. Dr. DeFilippis noted that Dr. Draisin, who “is in the same practice with Dr. Griffin and reportedly took over the claimant’s care on 04/10/2015,” explained that Meiri had “cognitive 4 testing on 04/16/2015 that indicated severe impairments. He said he felt the claimant met the 5 requirements in her disability policy for ‘total disability.’” Id. at 10. Dr. Draisin saw Meiri “the 6 day before” Dr. DeFilippis spoke to him on July 29, 2015. Id. at 11. Dr. Draisin reported Meiri 7 “had significant concentration and focusing issues.” Id. He thought “she ha[d] cognitive 8 problems, and he pointed to the computerized testing that was administered by Dr. Mielke. He 9 said the claimant looks really impaired. He said the claimant had ‘emotions’ about her issues, but 10 she was not floridly depressed. He said the claimant had a brain dysfunction. Dr. Draisin said the 11 United States District Court Northern District of California 3 claimant would not be able to work.” Id. at 11. He was using holistic and other techniques, and 12 predicted Meiri’s recovery would be “slow and occur over six to ten months.” Id. at 11. He did 13 not, however, “place any restrictions or limitations on the claimant’s daily activities.” Id. 14 Dr. DeFilippis also spoke to Dr. Mielke, who stated on July 28, 2015 that she had last seen 15 Meiri in May of 2015 and was not sure she would be back. She said “she did not know the cause 16 of [Meiri’s] problems,” that “she believed the claimant, and her overall condition had worsened 17 since she had thyroid surgery. She said the claimant had a low level of depression.” Id. at 11. Dr. 18 Mielke said “she did not know what was wrong with the claimant, but she did not think the 19 claimant could work,” that “she was trying to balance the claimant’s thyroid levels and was having 20 difficulty doing that,” that “the claimant’s mother had a similar problem,” and that Meiri “did not 21 look [as] impaired” as “the computerized test results showed.” Id. at 11. Meiri had “reported she 22 had trouble understanding how to take the test, and [Dr. Mielke] though the test needed to be 23 repeated.” Id. 24 Dr. Farshchian told Dr. DeFilippis that she last saw Meiri on April 8, 2015 and that “the 25 memory problem would interfere with the demands of any job, and she did observe the problem.” 26 Id. at 11-12. She stated in an August 6, 2015 letter that Meiri’s “difficulty with memory is likely 27 due to not having the correct thyroid dosing and the stress of going through cancer treatment.” Id. 28 at 17. Dr. Farshchian stated that she had observed Meiri’s stated problems “both in clinical visits 14 1 and in supportive lab work.” Id. 2 Dr. DeFilippis shared with his co-reviewer, Dr. Kublaoui, that from his perspective “the 3 records did not identify evidence of validly determined cognitive issues. Although the claimant 4 appears to be impaired to treatment providers, the only assessment of her cognition is the 5 computerized test given by Dr. Mielke, and that appears to be invalid.” Id. at 12. While Meiri 6 “might have mild levels of anxiety and depression,” those conditions were “not determined to be 7 causing functional impairments for her.” Id. 10. 8 Social Security Administration Determination4 Examiner Caroline Salvador-Moses, Psy.D., performed an evaluation of Meiri on March 10 10, 2016. ECF No. 21-1 at 107. She reviewed Meiri’s Sutter Health Hospital medical records, a 11 United States District Court Northern District of California 9 letter from Dr. Mielke, and a letter from Dr. Draisin. Id. She performed a complete mental status 12 evaluation and psychological testing as ordered, a “Wechsler Adult Intelligence Scale - Fourth 13 Edition (WAIS-IV), a “Wechsler Memory Scale - Fourth Edition (WMS-IV)” test, and “Trails A 14 & B.” Id. Under “presenting problems,” Salvador-Moses wrote that Meiri “suffered thyroid 15 cancer and has resultant cognitive impairment and physical fatigue. She has accompanying 16 anxiety.” Id. Under “medical history,” Salvador-Moses wrote that Meiri “has hormone imbalance which 17 18 causes cognitive impairment, fatigue, and weakness . . . [s]he receives treatment from a cognitive 19 functioning and fatigue consultant who wrote a letter stating that it was his medical opinion that 20 4 21 22 23 24 25 26 27 28 This Court follows those courts that have considered Social Security decisions rendered after the final internal plan appeal “because [they] constitute[] additional evidence that the [plaintiff] could not have presented in the administrative process.” See Randall v. Met. Life Ins. Co., Case No. 15cv-04343-JST, 2017 WL 476404, at *18; see also Oldoerp v. Wells Fargo & CompanyLong Term Disability Plan, No. C 08-05278 RS, 2013 WL 6000587, at *2 (N.D. Cal. Nov. 12, 2013) (“While MetLife was unable to review the SSDI award before Oldoerp's claim was closed in June 2008, the SSA's determination, which was apparently based on an in-person evaluation and a review of medical records, could shed new light on Oldoerp's condition during the relevant time period . . . . [W] here the after-arising SSDI decision helped the court assess whether the claimant suffered from some limitation on her ability to work, Oldoerp's SSDI evidence potentially bears on whether she experienced functional limitations after February 13, 2008 and thus whether MetLife was correct to deny her claim.”). The Court considers all of Meiri’s medical evidence included in the record in order “to enable the full exercise of an informed and independent judgment.” Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943 (9th Cir. 1995). Defendant’s motion to strike evidence outside of the administrative record is denied. ECF No. 25. 15 1 she meets the conditions of disability, meaning she is unable to engage in the material and 2 substantial duties of a regular occupation. The disability was subjectively defined in 3 neurocognitive testing in April 2015, indicating severe impairment in executive function 4 parameters.” Id. at 108. 5 With regard to her psychiatric history, Salvador-Moses wrote that Meiri “has symptoms of 6 anxiety and depression with fear, worry, preoccupation, and feelings of overwhelm. Her cognitive 7 impairment, memory loss, and physical fatigue resulting from her cancer lead to her depression. 8 Medical records indicate that claimant had doctor visits for poor concentration, focus, decreased 9 memory and cognitive function, ongoing fatigue plus a variety of somatic dysfunctions. She experienced ongoing adjustments to the changes and its significant impact. She received 11 United States District Court Northern District of California 10 counseling sessions to ascertain status of her adaptations and appreciating the challenges of being 12 off of routine activities. Records from Developmental Spectrums - Optimal Health Spectrums 13 indicate that claimant experiences cognitive impairment with poor memory, is easily 14 overwhelmed, and has problems focusing.” Id. She again mentioned the neurocognitive exam, 15 noted Meiri “is prescribed Celexa and receives therapy for her adjustment issues,” “experienced 16 physical abuse and had nightmares and received EMDR treatment for the traumas,” and “is 17 prescribed Celexa and Lexapro.” Id. 18 In a section on “activities of daily living,” Salvador-Moses wrote that Meiri “reported that 19 she struggles in being able to complete tasks of daily living. She is very easily fatigued and her 20 concentration and memory are poor. She tries to exercise but tires easily.” Id. While Meiri “was 21 friendly during the evaluation,” she also “appeared depressed, anxious, and irritable, and her affect 22 was constricted.” Id. Her “[t]hought process was adequately linear. Thought content contained 23 preoccupations and worries and frustrations regarding her condition.” Id. She “showed poor 24 memory and recall as evidenced by the results of the testing,” but Salvador-Moses did not note 25 anything else in the memory and recall section. Id. at 109. With regard to her “insight and 26 judgment,” Meiri “demonstrated impaired understanding of her illness and the need for treatment. 27 Claimant demonstrated impaired ability to make realistic plans and anticipate the consequences of 28 actions.” Id. Salvador-Moses did not elaborate. 16 1 Salvador-Moses considered the results of the tests she administered valid, and Meiri 2 “appeared to put forth her best effort in doing well on the various subtests.” Id. Meiri scored “low 3 average” or “borderline” in all categories of the Wechsler Adult Intelligence Scale. Id. She 4 scored very poorly on the Weschsler Memory Scale, with results indicating “her ability to learn 5 and recall new auditory and visual information is severely impaired.” Id. Results of the Trails 6 tests “indicate[d] that her planning, set shifting, sequential abilities, and mental flexibility are 7 severely impaired with both simple tasks and more complex tasks.” Id. at 110. Meiri’s “DSM-5 8 Diagnoses” were listed as “Neurocognitive Disorder, Mild,” “Unspecified Anxiety Disorder,” and 9 “Unspecified Depressive Disorder.” Id. Under “diagnostic impressions,” Salvador-Moses wrote that Meiri “presents with 10 United States District Court Northern District of California 11 symptoms of depression and anxiety as a result of her medical conditions and decline in 12 functioning. Neurocognitive disorder was assigned due to her impaired memory and cognitive 13 functioning resulting from her illness. Symptoms cause distress and lead to clinically significant 14 impairment in various areas of functioning.” Id. Salvador-Moses included a statement that the purpose of her evaluation “was to provide 15 16 diagnostic and clinical impressions, and evaluate the claimant’s current level of work-related 17 abilities from an emotional and cognitive, not medical, standpoint.” Id. Moreover, the evaluation 18 was “limited in scope,” “based on only one session of client contact,” background information was 19 “limited and primarily provided by the claimant and other listed sources,” and “[c]orroboration of 20 self-reported history [was] recommended.” Id. 21 With that in mind, Salvador-Moses concluded that “[p]sychomotor retardation was 22 evident,” and Meiri had severe impairments in her abilities on various skills required to adequately 23 function in a work environment. Id. at 11. Meiri is also “unable to manage her own funds 24 independently.” Id. 25 II. LEGAL STANDARD 26 A. 27 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 28 Summary Judgment any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 17 “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by” 2 citing to depositions, documents, affidavits, or other materials. Fed. R. Civ. P. 56(c)(1)(A). A 3 party also may show that such materials “do not establish the absence or presence of a genuine 4 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. 5 Civ. P. 56(c)(1)(B). An issue is “genuine” only if there is sufficient evidence for a reasonable 6 fact-finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248– 7 49 (1986). A fact is “material” if the fact may affect the outcome of the case. Id. at 248. 8 Where the party moving for summary judgment would not bear the burden of proof at trial, that 9 party bears the initial burden of either producing evidence that negates an essential element of the 10 non-moving party's claim, or showing that the non-moving party does not have enough evidence 11 United States District Court Northern District of California 1 of an essential element to carry its ultimate burden of persuasion at trial. If the moving party 12 satisfies its initial burden of production, then the non-moving party must produce admissible 13 evidence to show that a genuine issue of material fact exists. See Nissan Fire & Marine Ins. Co. v. 14 Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). The non-moving party must “identify with 15 reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 16 F.3d 1275, 1279 (9th Cir. 1996). 17 “In ERISA cases, as is the usual rule, the existence of a material factual dispute precludes 18 summary judgment.” Sabatino v. Liberty Life Assur. Co. of Boston, 286 F. Supp. 2d 1222, 1229 19 (N.D. Cal. 2003) (citing Tremain v. Bell Indus., Inc., 196 F.3d 970, 978 (9th Cir. 1999)). To 20 evaluate Plaintiff's claim, the Court will conduct a bench trial pursuant to Federal Rule of Civil 21 Procedure 52 based on the administrative record and such other evidence as the Court admits. 22 Caplan v. CAN Financial Corp., 544 F.Supp.2d 984, 990 (N.D. Cal. 2008) (“Under Rule 52, the 23 court conducts what is essentially a bench trial on the record, evaluating the persuasiveness of 24 conflicting testimony and deciding which is more likely true.”) (citing Kearney, 175 F.3d at 1094- 25 95). 26 B. 27 “ERISA was enacted ‘to promote the interests of employees and their beneficiaries in 28 ERISA Standard of Review employee benefit plans,’ and ‘to protect contractually defined benefits.’” Firestone Tire & Rubber 18 1 Co. v. Bruch, 489 U.S. 101, 113 (1989) (internal citations omitted). ERISA “permits a person 2 denied benefits under an employee benefit plan to challenge that denial in federal court.” 3 Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). “ERISA's civil-enforcement 4 provision . . . allows a claimant ‘to recover benefits due to him under the terms of his plan [and] to 5 enforce his rights under the terms of the plan.’” Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 6 1290, 1294 (9th Cir. 2010) (quoting 29 U.S.C. § 1132(a)(1)(B)). 7 “[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo 8 standard unless the benefit plan gives the administrator or fiduciary discretionary authority to 9 determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115. In this case, the parties have stipulated, and the Court has ordered, that de novo review is 11 United States District Court Northern District of California 10 appropriate. See ECF No. 32. Under de novo review, “the court simply proceeds to evaluate 12 whether the plan administrator correctly or incorrectly denied benefits with no deference given to 13 the administrator's decision.” Abatie v. Alta Health & Life Ins. Co., 458 F.3 955, 963 (9th Cir. 14 2006) (en banc). 15 The Court determines whether Meiri “was entitled to benefits based on the evidence in the 16 administrative record and ‘other evidence as might be admissible under the restrictive rule of 17 Mongeluzo.’” Opeta v. NW Airlines Pension Plan for Contract Emps., 484 F.3d 1211, 1217 (9th 18 Cir. 2009) (quoting Kearney, 175 F.3d at 1094). Under the Mongeluzo rule, a Court may only 19 consider extrinsic evidence under certain limited circumstances. Id. (citing Mongeluzo v. Baxter 20 Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943-44 (9th Cir. 1995)). Ninth Circuit 21 has “cited with approval the rule . . . that the district court should exercise its discretion to consider 22 evidence outside of the administrative record ‘only when circumstances clearly establish that 23 additional evidence is necessary to conduct an adequate de novo review of the benefit decision.’” 24 Id. (internal citations omitted) (emphasis in original). 25 “When a district court reviews de novo a plan administrator's determination of a claimant's 26 right to recover long term disability benefits, the claimant has the burden of proving by a 27 preponderance of the evidence that [she] was disabled under the terms of the plan.” Armani v. 28 Northwestern Mutual Life Ins. Co., 840 F.3d 1159, 1162-63 (9th Cir. 2016) (citing Muniz, 623 19 1 F.3d at 1294). “[A] diagnosis . . . alone does not automatically amount to a finding that a claimant 2 is disabled; the claimant must also establish that [her] condition renders [her] unable to perform an 3 essential function of [her] job.” Arko v. Hartford Life and Accident Ins. Co., ––– Fed. Appx. ––– 4 –, 2016 WL 7422946, at *1 (9th Cir. Dec. 23, 2016) (citing Jordan v. Northrop Grumman Corp. 5 Welfare Benefit Plan, 370 F.3d 869, 880 (9th Cir. 2004), overruled on other grounds as recognized 6 by Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 673-74, 678 n.33 (9th Cir. 2011)). 7 III. Meiri seeks recovery of LTD benefits under the Plan. ECF No. 21. Defendant seeks 8 9 DISCUSSION summary judgment in its favor on the basis that Meiri is not entitled to any of the benefits she seeks in this action because the Plan administrator’s decision to deny Meiri’s claim was correct 11 United States District Court Northern District of California 10 under de novo review, and because Meiri cannot prove by a preponderance of the evidence that 12 she was disabled. ECF No. 24. The Court concludes that Meiri has met her burden of proving disability under the plan 13 14 because the consensus of her treating doctors is that her cognitive impairment prevents her from 15 engaging in any occupation for which she is qualified. The Court first looks to the opinions of 16 Meiri’s treating physicians, all of whom either clearly supported her disability or expressed no 17 opinion on her ability to work. Several of Meiri’s attending doctors explicitly and repeatedly 18 stated that she was cognitively impaired and could not work.5 Dr. Mielke wrote in her Attending Physician’s Statement of Functionality on February 16, 19 20 2015 that while Meiri had no physical restrictions, she had “not responded to any intervention so 21 far” and “would be unable to function in a work environment.” ECF No. 20-3 at 272. Dr. Mielke 22 later told Dr. DeFilippis that “she did not think the claimant could work,” that “she was trying to 23 balance the claimant’s thyroid levels and was having difficulty doing that,” and that “the 24 claimant’s mother had a similar problem.” ECF No. 20-3 at 11. 25 26 27 28 To the extent Meiri’s motion to strike rests on objections to attacks on her doctors’ credentials, the motion is denied as moot. ECF No. 30. The Court places no reliance on Hartford’s Exhibit 24 or on any legal conclusions in the Cowan Declaration, Dr. Draisin’s records are included in the record and relevant upon de novo review, and the Court disregards any statements requiring knowledge in Cowan’s Declaration. Id. at 2-3. 20 5 1 In a March 12, 2015 report, Dr. Farshchian stated that “[c]linically, memory issues are very 2 common with thyroid imbalance and her memory issues are likely a result of the stress of thyroid 3 cancer and imbalanced thyroid hormone levels.” ECF No. 20-3 at 214. Dr. Farshchian told Dr. 4 DeFilippis that she saw Meiri on April 8, 2015, and that “the memory problems would interfere 5 with the demands of any job, and she did observe the problem.” ECF No. 20-3 at 11-12. She had 6 observed Meiri’s problems “both in clinical visits and in supportive lab work.” Id. 7 Dr. Mielke reiterated on May 27, 2015 that she had stated Meiri was unable to work, and that “her symptom onset and worsening is clearly temporally related to the thyroidectomy 9 surgery.” ECF No. 20-3 at 58. She noted she was “still in the process of managing her levels and 10 symptoms” of thyroid replacement, and she did “not yet know why she is not responding well to 11 United States District Court Northern District of California 8 treatment and is having symptoms of cognitive impairment.” Id. 12 On June 30, 2015, Dr. Draisin wrote to Hartford stating he wrote “to express my medical 13 opinion that she meets the conditions in your policy of disability - ‘continuously unable to engage 14 in the material and substantial duties of her regular occupation.’” ECF No. 20-3 at 59. While he 15 relied in part on the cognitive testing done by Dr. Mielke, he felt Meiri’s disability was “equally 16 supported by the ongoing surveillance of her symptoms by her managing practitioners, myself 17 included.” Id. Dr. Draisin also saw Meiri the day before Hartford’s paper reviewer spoke to him, 18 on July 29, 2015. ECF No. 20-3 at 11. He said Meiri “looks really impaired,” and that she 19 “would not be able to work.” Id. While Hartford disputes whether the letter was ever received, 20 Dr. Draisin reitered on August 18, 2015 that there was “objective evidence (determined by testing) 21 of cognitive impairment,” and that it was related to Meiri’s thyroid disease based on timing 22 “concurrent with thyroid disease . . . no other clear etiology [and] not unusual thyroid replacement 23 therapy is not infrequently linked in [illegible] even with acceptable levels.” ECF No. 21-1 at 6. 24 In November 2015, Dr. Liu noted that “hyperthyroidism can impair[] cognitive function as noted 25 by many of my patients with Graves disease.” ECF No. 20-1 at 93. 26 While some of her symptoms may be of unclear etiology, all of Meiri’s doctors note that 27 she has them. “The Ninth Circuit has repeatedly held that ‘the lack of objective physical findings’ 28 is insufficient to justify denial of disability benefits.” Eisner v. The Prudential Ins. Co. of Am., 10 21 1 F.Supp.3d 1104, 1114 (N.D. Cal. 2014) (quoting Salomaa v. Honda Long Term Disability Plan, 2 642 F.3d 666, 669 (9th Cir. 2011)). At least one of Meiri’s doctors noted that even acceptable 3 thyroid replacement levels can be linked to problematic symptoms. ECF No. 21-1 at 6. 4 None of her doctors suggest that Meiri is capable of working, and most opine that she cannot. 5 Compare Randall, 2017 WL 476404, at *18 (“[Plaintiff’s] treating physicians . . . clearly indicated 6 she should return to work. They did not conclude that she was totally disabled or could not 7 perform the essential functions of her job.”). For instance, although Dr. Liu stated that a direct 8 connection between Meiri’s symptoms and her thyroid was “unclear,” she never questioned 9 whether Meiri was actually having symptoms. See, e.g., ECF No. 20-1 at 93. While Dr. Liu originally predicted on October 7, 2014 that Meiri would be able to return to work without 11 United States District Court Northern District of California 10 restrictions on a full-time basis on November 1, 2014, ECF No. 24-2 at 34, she also noted on 12 November 7, 2014 that Meiri “continued to feel unwell,” ECF No. 20-3 at 125. In contrast to 13 cases where doctors affirmatively do not support a patient’s disability, Hartford has not presented 14 evidence from after November 1, 2014 that Dr. Liu encouraged Meiri to return to work or 15 documented a belief that she could work. Dr. Griffin also did not state that Meiri could work, but 16 rather indicated she was not “comfortable confirming a need for disability at that point [after only 17 two visits].” ECF No. 20-3 at 43. 18 Despite some notable issues, the evidence of cognitive testing in the record also supports 19 Meiri’s position. Meiri admits that there were problems with her CNS test, conceding that “[t]he 20 record indicates that Meiri failed to understand the directions of some of the tests and did not 21 complete the testing correctly, leading to a small number of invalid testing results.” ECF No. 21 22 at 11, n.4. Moreover, Dr. Mielke stated to Dr. DeFilippis that the test should be redone. Meiri 23 also had testing done in support of her Social Security application, however, and those tests also 24 showed she was quite impaired. ECF No. 21-1 at 107. The validity of those tests is not in 25 question, and the Court concludes they are persuasive evidence of disability. 26 Moreover, Hartford’s internal independent medical reviews suffer from several 27 deficiencies that require the Court to afford them less weight than Plaintiff's medical evidence. 28 Most importantly, as in Salomaa, none of Hartford's consultants examined Plaintiff—although 22 1 they could have. While Hartford was not required to base its decision solely on the records from 2 Plaintiff's treating physicians, courts routinely weigh such records more heavily than they do 3 reports and file reviews from paid consultants who never examine the claimant or talk to the 4 claimant's treating physicians. See, e.g., Salomaa, 642 F.3d at 676; Minton v. Deloitte & Touche 5 USA LLP Plan, 631 F.Supp.2d 1213, 1219–20 (N.D.Cal.2009); Heinrich v. Prudential Ins. Co. of 6 Am., No. 04–cv–02943–JF, 2005 WL 1868179, at *8 (N.D. Cal. July 29, 2005). Here, Hartford’s 7 reviewers did speak with Meiri’s physicians, who reported that “the claimant appears to be 8 impaired to treatment providers.” ECF No. 20-3 at 12. Dr. DeFilippis discounted the opinions 9 that Meiri could not work, however, because “the only assessment of her cognition is the computerized test” which he considered invalid. Id. Dr. DeFilippis’s review is conclusory and 11 United States District Court Northern District of California 10 overemphasizes the CNS test while deemphasizing the clinical observations of Meiri’s physicians. 12 Dr. Kublaoui’s report engages in circular reasoning and conclusorily states that “although 13 untreated hypothyroidism can result in cognitive impairment, appropriately treated 14 hypothyroidism does not result in cognitive impairment.” ECF No. 21-1 at 6. He stated that the 15 “claimant’s thyroid function tests were normal” despite Meiri’s doctors reporting they were still 16 experimenting with her medications, and seemingly discounted the possibility that Meiri’s 17 cognitive symptoms could be the result of multiple causes. 18 Finally, Meiri correctly notes that “[s]imply being able to” sit for 8 hours and having 19 sedentary functional capabilities “does not necessarily enable one to work” in an occupation that 20 requires “careful thought and concentration.” Sabatino v. Liberty Life Assurance Co. of Bos., 286 21 F. Supp. 2d 1222, 1231 (N.D. Cal. 2003). Meiri’s well-paid role as the Vice President, Human 22 Experience Strategy Director for MediaVest USA (“MediaVest”) clearly required her to engage in 23 careful thought and interaction with others in the work place. Her job required a “minimu[m] of 3 24 years of managing professional level employees[,] strong and proven strategic skills and the 25 ability to apply them in the development of marketing/communications solutions[, and a] strong 26 understanding of and ability to work w/ both qualitative and quantitate[v]e data.” ECF No. 20-2 at 27 24. Meiri’s physicians indicated that her poor memory, unfocused demeanor, and other cognitive 28 difficulties would prevent her from meeting the demands of her occupation. The Court concludes 23 1 Meiri has proven by a preponderance of the evidence that she is disabled under the terms of her 2 Hartford Policy. 3 CONCLUSION 4 The Court grants Plaintiff’s Motion for Summary Judgment and denies Defendant’s Motion for Summary Judgment. Both motions to strike are denied. The Court hereby orders 6 Plaintiff to provide Defendant with a form of proposed judgment by August 4, 2017. Defendant 7 will then have five court days from the receipt of the proposed judgment to either approve it as to 8 form or object to it. If Defendant approves the proposed judgment, Plaintiff shall file the proposed 9 judgment with Defendant’s counsel’s signature, indicating Defendant’s approval. If Defendant 10 objects, Plaintiff shall file the proposed judgment along with Defendant’s objections, which are 11 United States District Court Northern District of California 5 not to exceed five pages. Plaintiff may also file a response to Defendant’s objections, which 12 response shall not exceed five pages. That filing is due five court days after Defendant’s 13 objections are due. 14 15 16 17 If Defendant neither approves the form of order nor serves objections on Plaintiff, the Court will sign the proposed judgment in the form provided by Plaintiff. IT IS SO ORDERED. Dated: July 24, 2017 18 19 20 ______________________________________ JON S. TIGAR United States District Judge 21 22 23 24 25 26 27 28 24
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