Linich v. Broadspire Services, Inc. et al, No. 2:2005cv02983 - Document 73 (D. Ariz. 2009)
Court Description: ORDER granting Defendant's 55 Motion for Summary Judgment; directing the Clerk to enter judgment accordingly. Signed by Judge Mary H Murguia on 3/23/09.(REW, )
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Linich v. Broadspire Services, Inc. et al 1 Doc. 73 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Broadspire Services, Inc.; Towers Perrin) ) Long-Term Disability Plan, ) ) Defendant. ) ) Mary D. Linich, No. CV-05-2983-PHX-MHM ORDER 16 17 18 19 Currently pending before the Court is Defendant's Motion for Summary Judgement. 20 (Dkt.#55.) Towers Perrin funds and maintains the Plan for which Broadspire is the claim 21 administrator. 22 Perrin before being diagnosed with Fibromyalgia and Chronic Fatigue Syndrome (“CFS”), 23 which Linich alleges prevented her from being able to perform her work duties or any other 24 occupation for which she is suited. Linich applied for and began receiving long-term 25 disability (hereinafter “LTD”) benefits from Towers Perrin on June 1, 1999. To remain 26 eligible for LTD benefits under the Plan, a claimant must show that she is unable to perform 27 her job for the first 130 weeks that she is disabled. After 130 weeks, a claimant is required 28 to show that she is unable to perform any occupation for which she is reasonably suited based Plaintiff Mary Linich worked as an administrative assistant for Towers Dockets.Justia.com 1 on her education, training, and experience. A claimant must also demonstrate that she 2 remains under the care of a licenced medial practitioner. On July 17, 2003, Broadspire 3 notified Linich that it would be conducting a review of her LTD benefits claims. On May 4 12, 2004, Broadspire terminated Linich’s LTD benefits effective June 22, 2004. Linich 5 subsequently appealed the plan administrator’s determination. After Broadspire issued its 6 final denial of benefits on July 6, 2005, Linich had exhausted all mandatory administrative 7 remedies under the plan and was entitled to file suit in federal court under the Employee 8 Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. On September 22, 9 2005, Linich filed suit against Defendants Broadspire Services, Inc. ("Broadspire") and 10 Towers Perrin Long-Term Disability Plan (the "plan") to recover lost benefits, including 11 prejudgment interest, enforce her right to future benefits, and recoup attorney’s fees and 12 costs. (Dkt.#1, p.5.) 13 On April 15, 2008, the Court issued an Order in which it determined that the 14 appropriate standard of review in this case would be abuse of discretion, rather than de novo 15 review. (Dkt.#54); see Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) 16 (holding that a court reviews an ERISA challenge to a denial of benefits as an abuse of 17 discretion “if the benefit plan gives the administrator or fiduciary discretionary authority to 18 determine eligibility for benefits or to construe the terms of the plan.”); see also Abatie v. 19 Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006) (en banc). 20 discovery deadlines for a 45 day period, the Court further held that no evidence had been 21 presented suggesting Broadspire possessed a conflict of interest in administering Towers 22 Perrin’s plan. Thus, the only issue that is squarely before the Court is whether the plan 23 administrator abused its discretion in denying Linich’s LTD claim. 24 After extending Legal Standard 25 Summary judgment is normally granted when the pleadings and court documents 26 demonstrate that there is no genuine issue as to any material fact and the moving party is 27 entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. However, that standard 28 shifts in the ERISA context. “When the decision to grant or deny benefits is reviewed for -2- 1 abuse of discretion, a motion for summary judgment is merely the conduit to bring the legal 2 question before the district court and the usual tests of summary judgment, such as whether 3 a genuine dispute of material fact exists, do not apply.” Bendixen v. Standard Ins. Co., 185 4 F.3d 939, 942 (9th Cir. 1999). 5 An ERISA administrator abuses its discretion only if it (1) renders a decision without 6 explanation, (2) construes provisions of the plan in a way that conflicts with the plain 7 language of the plan, or (3) relies on clearly erroneous findings of fact. Boyd v. Bert 8 Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir. 2005). Courts have 9 also asked whether the administrator acted in good faith in reaching a determination. See 10 McDaniel v. Chevron Corp., 203 F.3d 1099, 1113 (9th Cir. 2000). The Ninth Circuit has 11 cautioned that when district courts “review for abuse of discretion, it is because the plan has 12 put the locus for decision in the plan administrator, not in the courts,” and the district court 13 should not be in the habit of substituting its own judgment for that of plan administrators. 14 Jordan v. Northrop Gruman Corp. Welfare Benefit Plan, 370 F.3d 869, 875 (9th Cir. 2003). 15 The court's role is instead limited to whether the decision is “grounded on any reasonable 16 basis.” Id. (emphasis in original). In other words, the relevant inquiry is not whose 17 interpretation of plan documents is most plausible, but whether the plan administrator's 18 interpretation is unreasonable. McDaniel v. National Shopmen Pension Fund, 817 F.2d 19 1370, 1373 (9th Cir. 1987). 20 A court may overturn a plan administrator's discretionary judgment for clear error 21 only when the decision is plainly unsupported by substantial evidence in the administrative 22 record. Snow v. Standard Ins. Co., 87 F.3d 327, 332 (9th Cir. 1996) (quoting Maynard v. 23 City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)). Substantial evidence means “relevant 24 evidence reasonable minds might accept as adequate to support a conclusion even if it is 25 possible to draw two inconsistent conclusions from the evidence.” Id. Clear error also 26 occurs when the reviewing court is left with the "definite and firm conviction that a mistake 27 has been committed." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust 28 for S. Cal., 508 U.S. 602, 623 (1993); Boyd, 410 F.3d at1178. -3- 1 Nevertheless, “deferential review is not no review.” Hess v. Hartford Life & 2 Accident Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001). Even when reviewing for an abuse of 3 discretion, the district court is not required to simply “rubber stamp the administrator’s 4 decision.” Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 661 (7th Cir. 2004). Indeed, 5 the Supreme Court has recently reaffirmed the principle that ERISA “sets forth a special 6 standard of care upon a plan administrator” to exercise its discretion “solely in the interests 7 of the participants and beneficiaries of the plan,” providing a “full and fair review” to 8 claimants. Metro. Life Ins. Co. v. Glenn, __ U.S. __, 128 S.Ct. 2343 (2008). Background 9 10 Sometime in 1997, Linich began to feel ill with flu like symptoms. (PSOF ¶ 11.) 11 Around that same time she began seeing an infectious disease specialist, Dr. Christopher 12 Crow, for treatment. Throughout the early part of 1998, Dr. Crowe ran a variety of 13 laboratory tests to pinpoint the cause of Linich’s symptoms, which included fever, persistent 14 muscle and joint pain, headaches, a general malaise, and so forth. These tests proved to be 15 inconclusive, and in March 1998, Dr. Crowe referred Linich to Dr. Ralph Bennet, a Phoenix 16 area rheumatologist. (PSOF Exhibit #1, p. 312.)1 Dr. Bennett’s initial observations led him 17 to make a preliminary diagnosis that Linich was suffering from fatigue associated with a 18 prolonged recovery from mononucleosis. (PSOF ¶ 18.) 19 continually failed to demonstrate an infection or virus, and as Linich’s symptoms showed 20 little signs of abatement, by August 1998, Dr. Bennett began to suspect the presence of CFS. 21 (PSOF ¶ 21.) In August 1998, Dr. Crow completed a re-evaluation of Linich, where he However, as laboratory tests 22 23 24 25 26 27 28 1 In her briefing, Linich suggests that the administrative record, upon which Broadspire made its ultimate decision, must have been incomplete, since Broadspire’s counsel was not able to produce the entire record during discovery—Linich claims that some 500 plus pages were missing. There is, however, no evidence to support this assertion. Even if Broadspire inadvertently produced less than the entire file to Linich, it does not logically follow that Broadspire must have necessarily lacked access to those missing pages when it considered and denied Linich’s LTD claim. The Court has seen no evidence that would allow it to conclude that Broadspire made anything less than Linich’s complete medical file available to its appellate claim handlers. -4- 1 noticed that her symptoms had not changed for almost 11 months. (PSOF Exhibit 1, p. 312.) 2 Then, after Linich’s productivity at work began to noticeably decline, she was encouraged 3 to apply for short-term disability benefits by her employer, Towers Perrin, for which she was 4 approved in October 1998. (PSOF ¶ 4.) In November 1998, Dr. Bennett conducted a follow- 5 up evaluation of Linich where he concluded that she suffered from CFS, and “may have 6 difficulty” returning to work. (PSOF ¶ 24.) 7 In January 1999, Dr. Crowe filled out what would be the first of several Attending 8 Physician Statements (“APS”) for Towers Perrin, and later Broadspire, where he described 9 Linich’s symptoms as severe in nature, stating that she was still unable to return to work, and 10 would not be able to do so until December 1999, at the earliest. (PSOF ¶ 25-26.) Dr. Crowe 11 noted Linich’s symptoms now included “debilitating fatigue, memory loss and muscle pain.” 12 (Id.) Dr. Crowe’s APS also indicated that Linich had mentally declined, and that she had 13 an “inability to remember things, focus, read or comprehend simple material.” (PSOF Exhibit 14 1, p. 72.) (describing and quoting Dr. Crowe’s report from April 30, 1999.) Linich returned 15 to see Dr. Bennett in September 1999, where he discussed the use of anti-depressants and 16 prescribed a trial run of the drug Paxil. (PSOF ¶ 28.) When Linich returned for two follow 17 up visits in late 1999, complaining of difficulty “doing anything over 1 hour,” Dr. Bennett 18 performed a physical examination of the tender points on her body and observed the 19 inflamation of various Fibromyalgia trigger points. (PSOF ¶ 30.) Dr. Bennett quickly 20 concluded that Linich was afflicted with Fibromyalgia. (Id.) At the same time, Dr. Bennett 21 also noticed Linich’s ability to move around normally had declined, and that she was 22 suffering memory loss and a decreasing ability to communicate. (PSOF ¶ 33.) He conducted 23 various blood testing to rule out other causes. (PSOF ¶ 33-34.) 24 Around July 1999, Towers Perrin notified Linich that Intracorp, a disability 25 management firm, would assist it in dealing with employees who had been suffering from 26 long-term illnesses. 27 independent review of Linich’s disability claim. (PSOF ¶ 35-36.) After reviewing Linich’s 28 medical records, Dr. Ladin found no disability as defined under the plan, noting that upon Shortly thereafter, Intracorp hired Dr. Kevin Ladin to conduct an -5- 1 neurological examination “the patient appears awake, alert and oriented . . .. [s]peech is clear, 2 fluent and appropriate.” (P.74.) Dr. Ladin went on to postulate that Fibromyalgia and CFS 3 are: 4 5 6 7 somewhat controversial diagnosis with respect to both etiology and treatment. Although some physicians consider both conditions to be disabling, the medical literature supports increased activity with avoidance of a sedentary lifestyle to be therapeutic. As a result, it is my opinion this patient should not be considered disabled and in fact should be encouraged to resume gainful employment and maintain compliance with a regular program of exercise. A resumption of gainful employment may in fact prove therapeutic for this individual, in my opinion. 8 9 10 Based on objective clinical findings and utilizing the AMA Guidelines, there is no evidence of a permanent functional impairment. I do not believe this patient warrants any specific work restrictions, and would in my opinion be capable of working on a full-time basis. 11 (PSOF Exhibit 1, p. 71-76.) Dr. Ladin also observed Linich’s symptoms of brain fog, 12 insomnia and difficulty waking up in the morning. (Id.) 13 In response to Dr. Ladin’s conclusion that Linich was not disabled, Intracorp referred 14 her case to a second independent medical examiner, Dr. Sen Jou, an infectious disease 15 specialist. (PSOF Exhibit 1, p. 89, 83.) In September 1999, Dr. Jou examined Linich and 16 reported back to Towers Perrin that “the patient cannot return to work [in] her previous 17 occupation.” (PSOF Exhibit 1, p. 84.) 18 return might be towards the end of the 1999. 19 routine, anti-depressants and a follow up visit with a psychiatrist. 20 determined that Linich’s prognosis for recovery was with a “good attitude, . . . probably 21 good.” (Id.) Dr. Jou estimated that the probable time for such a Dr. Jou also recommended an exercise Ultimately Dr. Jou 22 In October 1999, Towers Perrin approved Linich for LTD benefits, which were 23 retroactive to June 1, 1999. (PSOF Exhibit 1, p. 78.) To continue remaining eligible for 24 LTD payments, the plan required, among other things, that Linich apply for Social Security 25 Disability benefits. If approved, the plan would off-set and recover any payment received 26 from the Social Security Administration. (PSOF Exhibit 1, p. 84, 94.) In January 2000, the 27 Social Security Administration found Linich disabled under the Act, and awarded her 28 -6- 1 payments backdated as of July 1999.2 2 follow-up visits with Dr. Crowe throughout 2000, where he observed that no significant 3 changes in the intervening months had occurred with respect to Linich’s symptoms. 4 Moreover, in a December 2000 re-evaluation, Dr. Crowe noted that Linich was “sleeping 5 more than 20 hrs per day,” appeared “confused at times,” and was incapable of driving. 6 (PSOF ¶ 48.) 7 (PSOF ¶ 47.) Linich continued to have regular In 2001, Kemper National Services became plan administrator for Towers Perrin. 8 (PSOF ¶ 65.) During that year, Linich remained under the care of Dr. Crowe, who 9 continued to observe Linich’s unchanged symptoms. (PSOF ¶ 49-51.) Later, in June 2002, 10 Dr. Crowe directed Linich to undergo several laboratory tests—all of which turned up 11 negative. (PSOF ¶ 54-55.) In September 2002, Kemper requested proof of continuing 12 disability from Drs. Crowe and Bennett, asking them to complete an APS, Estimated 13 Functional Capacity Evaluation (“EFCE”), and Evaluation of Physical Abilities (“EPA”), 14 provide chart notes, diagnostic testing, and a current treatment plan and progress. (PSOF ¶ 15 68.) Dr. Bennett, in his EFCE, indicated that Linich could not sit for longer than four hours, 16 could not stand or walk for more than 3 hours, and could only occasionally drive a car, 17 balance, bend, squat, climb, and reach above shoulder level. (PSOF ¶ 70-71.) While in his 18 APS, Dr. Bennett noted Linich’s prognosis was “poor,” that “her marked fatigue precludes 19 regular employment,” and her physical impairment was a Class 5–meaning she was 20 “incapable of sedentary work.” (PSOF ¶ 72.) Dr. Bennett also noted that Linich had reached 21 maximum medical improvement. (PSOF ¶ 73.) With respect to Dr. Crowe, his EPA noted 22 that Linich’s overall functional and strength activity was “sedentary,” which was the lowest 23 available choice for a physician to select, given the structure of Broadspire’s questionnaire. 24 (PSOF ¶ 71.) 25 26 27 28 2 The Social Security Administration found that Linich’s disability was continuing as of March 5, 2004. (PSOF Exhibit 1, p. 350.) -7- 1 On July 17, 2003, Kemper notified Linich that it was conducting a review of her 2 benefits claim. Approximately one month later, Linich was re-evaluated by Dr. Crowe, at 3 which time she complained of debilitating fatigue—claiming that she could not stand long 4 enough to perform a simple task like washing the dishes. Dr. Crowe referred Linich to Dr. 5 Robert Biesbroeck for an endocrinology evaluation, where she was subsequently diagnosed 6 with Type II diabetes. (PSOF ¶ 56-57.) 7 In late 2003, Broadspire Services Incorporated became plan administrator, taking over 8 from Kemper. There is some confusion as to what occurred next. Apparently, in November 9 2003, Broadspire requested a portion of Linich’s medical documentation from Drs. Crowe 10 and Biesbroeck. (DSOF ¶12.) Strangely, there is no evidence in the record to suggest that 11 Dr. Bennett received a similar documentation request from Broadspire, despite his long 12 history of treating Linich. Furthermore, the information that was requested from Drs. Crowe 13 and Biesbroeck was not comprehensive in that it did not include Linich’s complete medical 14 file. Instead, Broadspire only requested records relating to Linich’s “patient charts from the 15 last 10 visits,” “the most recent diagnostic test results,” the most up to date “treatment plan 16 and progress,” and a APS and Functional Capacity Evaluation form that Linich’s physicians 17 were to fill out and return. 18 Biesbroeck did not respond to that request. Then, in December 2003, after having not 19 received any information, Broadspire contacted Linich to notify her that her physicians had 20 yet to respond to its inquiry. (See DSOF ¶13; PSOF ¶84.) Broadspire’s letter asked Linich 21 to provide medical documentation to support her claim, but only documentation that dated 22 back to January 1, 2003. After that attempt proved to be futile, in January 2004, Broadspire 23 again attempted to contact Dr. Crowe. This letter ambiguously requested documentation “for 24 the past six months.” (Id.) Still having not heard anything from Linich or her doctors, on 25 Febraury 13, 2004, Broadsprire sent another letter to Linich, reiterating its request for 26 updated “medical records, including all chart notes and diagnostic results for the last year of 27 treatment.” ( PSOF Exhibit 1, p. 260.) Ultimately, on February 20, 2004, Dr. Crowe 28 submitted the requested documentation to Broadspire. Given the unfortunate narrowness ( DSOF Exhibits 7, 8.) -8- In any event, Drs. Crowe and 1 of the information requested, Dr. Crowe’s submission only totaled 8 pages in length, and 2 included a single APS and EPA, some progress notes from office visits, and one consultation 3 report from Dr. Briesbroeck. (See DSOF ¶16; PSOF ¶87.) 4 At some point in early to mid 2004, Broadspire determined that it would either be 5 conducting a new review of Linich’s LTD claim or continuing the review process begun by 6 Kemper. As such, on March 18, 2004, Broadspire referred Linich’s case to an independent 7 physician for analysis. (DSOF Exhibit 14.) 8 information that was forwarded to Dr. Nelson Zide, the reviewing physician, included only 9 what had been sent to Broadspire by Dr. Crowe on February 20, 2004. With that limited 10 amount of information in hand, Dr. Zide conducted his peer review of Linich’s LTD claim. 11 Dr. Zide’s review stated that “[t]he records reviewed do not demonstrate any evidence of 12 physical examination characteristics that would support” a finding of myalgias, arthralgias, 13 insomnia, fatigue and memory loss. (Id.) Dr. Zilde went on to note: For reasons unknown to the Court, the There is no examination available for review and there are no records suggesting a specific disability. The Physical Abilities Evaluation reports a Class 5 physical impairment and a Class 2 mental/nervous system impairment. There is no explanation for the reasons in reviewing the rest of the data available. 14 15 16 I have attempted to call and speak with the claimant’s attending physician, an infectious disease physician, Dr. Crowe. I called once 3/3/04, twice on 3/4/04, and again on 3/5/04. I was told on 3/3/04 that the physician would call me in the morning of 3/5/04, but he failed to call and when I called back I was told he would get back to me in the afternoon. I gave my cellphone and office numbers but have not yet heard from him by the evening of this dictation. In view of same I have no alternative but to find no support for functional impairment that would preclude work of any nature.” 17 18 19 20 21 (Id.) 22 Also in March 2004, Broadspire conducted an Employability Assessment Report. 23 (DSOF Exhibit 17.) As was the case with Dr. Zide’s peer review, the employability 24 assessment evaluator appeared to have had access to only the Febraury 20, 2004 25 documentation–along with Dr. Zide’s report. In the “Vocational Background” section of 26 the assessment it states that Dr. Crowe had listed Linich as “sedentary in all functional 27 activity.” (Id.) The evaluator also noted that he had spoken with Linich, who had indicated 28 -9- 1 “that her activities on a normal day are limited to 4 hours per day and if she did activities for 2 6 hours she would be down for a week,” and that she could not be considered a “reliable 3 employee.” (Id.) The evaluator then performed a transferable skills analysis and found 4 Linich’s work skills, “clerical and highly skilled usually associated with highly organized 5 and well developed cognitive functioning.” (Id.) The evaluator went on to note that he had 6 analyzed Linich’s claim in light of Dr. Zide’s report, and had “us[ed] this medical 7 assessment” to guide the transferable skills analysis which he had performed. 8 Ultimately, the Employment Assessment determined that Linich was capable of performing 9 a variety of occupations: (1) contract clerk, (2) paralegal, (3) administrative assistant, (4) 10 foreign student advisor, (5) utilization coordinator, and (6) legal investigator. The report 11 concluded by recommending that a Labor Market Survey be conducted to analyze whether 12 Linich’s “current skills and aptitudes as demonstrated through her former work experiences 13 suggest she may be capable of engaging in the competitive employment in any of the 14 positions listed above.” (Id.) (Id.) 15 Broadspire then conducted a Labor Market Survey on March 31, 2004, for the 16 aforementioned purpose of determining whether job opportunities consistent with the 17 Employability Assessment Report were available in Linich’s local labor market. (DSOF 18 Exhibit 18.) Like the employability assessment, the market survey noted that it had relied 19 heavily on Dr. Zide’s peer review report, along with an extended telephonic interview with 20 Linich. Ultimately, the market evaluator recommended seven openings in the Mesa, Arizona 21 labor market which “appear[ed] to meet the medical restriction as stated by Dr. Zide.” (Id.) 22 The first position listed was a legal secretary with the following job description: “Prestigious 23 international law firm in Phoenix has opening for a litigation paralegal . . . high computer 24 usage . . . [t]he position is very document intensive . . . very strong computer skills.” (Id.) 25 The second position was for an administrative assistant: “answering phones, running reports, 26 typing/data entry and greeting guests.” (Id.) The next position was also as an administrative 27 assistant: “must be organized, able to work in chaotic environment.” (Id.) 28 position was similar, requiring “administrative and office support activities for multiple - 10 - The fourth 1 supervisors . . . receiving and directing visitors . . . requires strong communication skills.” 2 (Id.) 3 organizational, analytical, time management skills along with the ability to set priorities and 4 manage multiple tasks within short-time frames and with minimal supervision. Strong 5 decision making skills, with strong interpersonal and communication skills.” (Id.) The 6 remaining two positions listed in the report are comparable, in that they were all searching 7 for candidates “comfortable working in an office,” capable of greeting “incoming clients,” 8 “multi-task,” and possessing “excellent customer service skills.” (Id.) The fifth listed position was again for an administrative assistant: “excellent 9 On April 12, 2004, Broadspire notified Linich that it was conducting a review of her 10 LTD claim, and that as a preliminary matter, the plan found no support that Linich was 11 incapable of performing work of any nature. (DSOF Exhibit 15.) The letter was almost 12 exclusively made up of verbatim quotes directly lifted from Dr. Zide’s peer review report. 13 The letter also informed Linich that she would be permitted to supplement her file and 14 present additional evidence of a continuing disability under the terms of the plan. In 15 response, on April 26, 2004, Dr. Crowe submitted a re-evaluation to Broadspire detailing 16 Linich’s medical history. (PSOF Exhibit 1, p. 312.) 17 On May 12, 2004, Broadspire officially denied Linich’s LTD claim. Linich was 18 notified via letter that, “[b]ased upon medical review [Broadspire had] concluded that the 19 medical documentation does not support your disability status as defined by [the] LTD plan.” 20 (DSOF Exhibit 16.) Broadspire informed Linich that her benefits were to be discontinued 21 effective June 1, 2004. The May 2004 denial of benefits letter appears to focus primarily 22 on the Employability Assessment Report and the Labor Market Survey, as well as Dr. Zide’s 23 medical report. Indeed, the denial letter reads as though it was summarizing or re-stating 24 the employment and labor reports. The letter also states that Linich would be given the 25 opportunity to provide a written appeal, which should include “current medical 26 documentation from [a] health care provider . . . [and] data such as: diagnostic test results . 27 . . specific functional abilities, including any and all restrictions and limitations. (Id.) On 28 July 22, 2004, Linich filed an appeal of the denial of benefits. (DSOF Exhibit 19.) On - 11 - 1 appeal, Linich provided Broadspire with additional medical documentation from her treating 2 physicians, including the aforementioned April 2004 evaluation conducted by Dr. Crowe, an 3 APS submitted by Dr. Bennett, and additional evaluation report from Dr. Crowe. (DSOF 4 Exhibits 20-22.) 5 In preparing to handle Linich’s appeal, Broadspire contacted several independent 6 physicians to review Linich’s benefits claim. (PSOF ¶¶ 115-16.) Unlike Dr. Zide, these 7 reviewers appeared to have had access to Linich’s complete medical history. The first of 8 Broadspire’s reviewers was Dr. Thomas Hoffman, an infectious disease specialist, who found 9 that Linich’s medical records failed to support any functional impairment that would 10 preclude work of any type. (PSOF ¶¶ 117-18.) Dr. Hoffman noted that Linich could only 11 point to subjective symptoms and had no objective findings to support her claimed loss of 12 stamina or functionality. 13 syndrome, the symptoms may be concerning and troubling, but objective data to support 14 functional impairment in this process is lacking.” (Id.) The second peer review physician 15 was Dr. Elana Mendelssohn, a clinical and neurpsychology specialist, who also concluded 16 that Linich’s file “does not support functional impairment from a neuropsycholgical 17 perspective.” (PSOF ¶¶ 122-24.) Among other things, Dr. Mendelssohn found, “[m]ost of 18 the documentation pertains to the evaluation and treatment of the claimant’s various medical 19 conditions and do not address her mental status.” (Id.) 20 rheumatology specialist, prepared a third peer review report, which stated that Linich was 21 not precluded from working any occupation as of June 2004. (PSOF ¶¶ 119-20.) 22 Caldwell noted that he had attempted to speak with Dr. Bennett twice, but “on neither 23 occasion did he have her chart available.” (Id.) Moreover, Dr. Caldwell wrote that on April 24 26, 2004, Dr. Bennet had stated that Linich was capable of performing sedentary work.3 The Dr. Hofffman wrote, “[a]s is the case with chronic fatigue Dr. Jacques Caldwell, a Dr. 25 26 27 28 3 Linich strongly contests that such a remark was ever made, and indeed, the Court cannot find supporting evidence that would verify its accuracy. In fact, such a comment from Dr. Bennett seems to run counter to all of his other statements found in the administrative record. - 12 - 1 fourth reviewing physician, Dr. Tamara Bowman, an endocrinologist, focused on Linich’s 2 medical history as a diabetic. (PSOF ¶ 121.) 3 On August 10, 2004, Broadspire upheld its original decision to terminate Linich’s 4 LTD benefits. (DSOF Exhibit 24.) Broadspire’s proffered justification was as follows (1) 5 Rheumatology: There was “no clinical evidence of immunologic or muscoskeletal 6 abnormalities,” Dr. Bennett indicated that Linich was capable of performing sedentary work, 7 and that when contacted by Broadspire’s peer review doctors, he did not have Linich’s chart 8 available. (Id.) (2) Infectious Disease: “[I]n the medical documentation submitted, no 9 active infections were identified. Attempts to contact Dr. Crowe were unsuccessful.” (3) 10 Endocrinology: Linich had been diagnosed with diabetes and hyperlipidemia by Dr. 11 Biesbroeck, but he was unable to provide any clinical findings that would preclude Linich 12 from working based on these conditions. (4) Depression and Memory Loss: Neither Dr. 13 Crowe nor Dr. Bennett provided examination findings regarding Linich’s cognitive abilities, 14 and no records were submitted from Linich’s psychologist. Lastly, “the medical evidence 15 does not document an intensity and severity of psychological symptomology” that would 16 prevent Linich from performing any occupation. (Id.) In the same letter, Broadspire notified 17 Linich that she could lodge a final appeal. In doing so, Linich was advised to provide 18 additional medical data, including but not limited to, detailed consultation notes, abnormal 19 diagnostic tests, formal mental status evaluations, performance based tests of 20 neuropsychological functioning with standardized scores, behavioral observations of 21 symptoms, or any other pertinent information. On April 28, 2005, Linich transmitted her 22 final appeal to Broadspire. (PSOF ¶ 131.) 23 On July 6, 2005, Broadspire issued its final decision, upholding the termination of 24 LTD benefits. (PSOF Exhibit 1, pp. 1090-92.) Before doing so, Broadspire contacted four 25 more peer review doctors to review Linich’s claim: Dr. Wendy Weinstein, an internal 26 medicine specialist; Dr. Yvonne Sherrer, a rheumatoloist; Dr. Lawrence Burstein, a 27 psychologist; and Dr. Mitchell Rosenfeld, an infectious disease specialist. Dr. Weinstein 28 found that Linich’s diabetes did not render her disabled under the terms of the plan. - 13 - 1 Similarly, Dr. Sherrer concluded that although Linich has multiple subjective complaints, 2 “subjective complaints of pain in and of themselves do not determine functional ability” and 3 “cannot be said to determine that she is not able to work at any other occupation.” 4 Furthermore, according to Dr. Sherrer, reasonable restrictions on Linich’s potential future 5 occupations “would be that she would not be at a job that would require heavy lifting, 6 prolonged standing, or prolonged walking, and that she would be at a job that would allow 7 for frequent shifting positions.” Dr. Sherrer agreed with positions taken in the Employability 8 Assessment Report. Likewise, Dr. Burstien, found that any alleged impairments in Linich’s 9 cognitive functioning “have not been substantiated by examination findings.” On the other 10 hand, Dr. Rosenfeld, determined that Linich’s “subjective complaints do preclude her ability 11 to work,” noting that “[a]ll too often in chronic fatigue syndrome, there are no objective 12 physical findings . . .[and] ultimately [it] is a disease of exclusion.” Furthermore, Dr. 13 Rosenfeld found that “the claimant does, in fact, meet the major and at least four minor 14 criteria as outlined by the [Centers for Disease Control] case definition,” and that “none of 15 the occupations noted in the Labor Market Survey . . . would be appropriate.” 16 Discussion 17 In many respects, this case is troubling, but perhaps the most perplexing is the nature 18 of Linich proffered illnesses, Fibromyalgia and CFS. The origins of Fibromyalgia and CFS 19 are either unknown or not properly understood, their symptoms are largely subjective and 20 vary in intensity from patient to patient. They are medical conditions that are often 21 diagnosed through a process of exclusion, whereby a firm medical diagnoses is reached only 22 after other reasonable medical conclusions have been explained away. With respect to 23 Fibromyalgia, the leading Ninth Circuit case discussing the illness notes that there are no 24 objective laboratory tests to “establish the presence or absence of the disease, it is 25 characterized as an “ill-defined, poorly understood set of symptoms,” associated with a 26 feeling of generalized pain in multiple regions of the body. See Jordan, 370 F.3d at 872-73. 27 According to the American College of Rheumatology, a diagnosis of Fibromyalgia is 28 deemed “appropriate for an otherwise unexplained condition in which a patient complains - 14 - 1 of pain on the left side of the body, the right side of the body, above the waist, and in the 2 axial skeleton, and in at least 11 of 18 specified points when the examining physician 3 palpates them with his thumb.” Id. at 877 (citing Frederich Wolde, et al., The American 4 College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia, 33 Arthritis 5 and Rheumatism (No. 2) 160, 171 (Feb. 1990)). With respect to CFS, the Sixth Circuit has 6 commented that “[the] syndrome is marked by incapacitating fatigue that rest does not 7 relieve; it is frequently associated with decreased concentration, irritability, sleep 8 disturbances, recurrent sore throats, low-grade temperatures, swollen glands, and bone or 9 muscle aches. . . . The cause of the syndrome is unknown, and the patient's symptoms may 10 wax and wane, are difficult to validate objectively, but are subjectively debilitating.” Rose 11 v. Hartford Fin. Servs. Group, 268 Fed. Appx. 444, 446 n.3 (6th Cir. 2008) (quoting Taber's 12 Cyclopedic Medical Dictionary 402 (19th ed. 2001)). 13 present problems in the world of disability law; for plan administrators who have to 14 determine the weight of a claimant’s highly subjective symptoms, and for reviewing courts 15 who ultimately pass over their judgment. As such, Fibromylagia and CFS 16 As a preliminary matter, Linich raises two arguments that can be disposed of 17 relatively quickly. Linich first contends that, as a matter of law, Broadspire abused its 18 discretion when it failed to show adequate deference to medical determinations made by 19 Linich’s treating physicians. (Dkt.#62, pp. 10-11.) The Circuit law on this issue is well 20 settled. An award of benefits under the Social Security Act is not binding on claims 21 administrators because the so called “treating physician rule,” which requires that greater 22 weight be given to the opinions of a treating physician unless rejected by specific substantial 23 evidence in the record, is inapplicable in the ERISA context. Madden v. ITT Long Term 24 Disability Plan, 914 F.2d 1279, 1285 (9th Cir.1990); Butler v. Shoemake, 173 F. Supp. 2d 25 1069, 1076 (D. Or. 2001). Broadspire was in no sense obligated to show special deference 26 to Linich’s primary care physicians. While the findings and recommendations of Linich’s 27 treating physicians are indeed relevant to a fair and full assessment of her claim, their 28 opinions—if Broadspire so chooses—need not be given any more weight than other evidence - 15 - 1 found in the administrative record, including evaluations conducted by plan sponsored peer 2 review physicians. 3 Linich next claims that as plan administrator Broadspire has an intractable conflict 4 of interest because its claim handlers were required to “focus on the bottom line” and take 5 calculated financial risks to avoid paying out meritorious benefits claims. (Dkt.#62, pp. 6 5-6.); (PSOF ¶ 81.) 7 performance review of Aimee Vergara, the Broadspire claims adjuster who managed Linich's 8 claim. (PSOF Exhibit 1, pp. 1598-1602.) Defendant counters by arguing that the district 9 court may only review evidence found in the administrative record, and Vergara's review 10 should therefore be disregarded. See Alford v. DHC Found. Group Long-Term Disability 11 Plan, 311 F.3d 955, 959 (9th Cir. 2002) (“When courts apply the abuse of discretion 12 standard, they generally limit review to the record before the plan administrator when making 13 the benefits determination.”). In Abatie v. Alta Health & Life Ins. Co., the en banc Ninth 14 Circuit held that the use of extrinsic evidence was permitted in limited circumstances, 15 writing, “[t]he district court may, in its discretion, consider evidence outside the 16 administrative record to decide the nature, extent, and effect on the decision-making process 17 of any conflict of interest; the decision on the merits, though, must rest on the administrative 18 record once the conflict (if any) has been established, by extrinsic evidence or otherwise.” 19 458 F.3d 955, 970 (9th Cir. 2006) (en banc). So while this Court will consider allegations 20 of Broadspire’s conflict of interest, it is mindful of the fact that the Parties have already been 21 given an opportunity to brief this issue, which the Court addressed in its April 15, 2008 22 Order. The Court also notes that the recent Supreme Court decision in MetLife— which held 23 that “[i]f a benefit gives discretion to an administrator or fiduciary who is operating under 24 a conflict of interest, that conflict must be weighed as a factor in determining whether there 25 is an abuse of discretion”—means the standard of review would remain unchanged, 26 irrespective of the outcome of this Court’s conflict of interest analysis. See 128 S.Ct. at 27 2347-48 (internal quotations omitted). Nevertheless, after a thorough review of Vergara’s 28 employment records, the Court finds no proof that the ultimate denial of Linich’s claim was To this end, Linich has provided the Court with the employee - 16 - 1 predicated upon a structural conflict of interest, or that Broadspire’s decision was in any 2 sense related to “malice,” “self-dealing, or [] parsimonious claims-granting.” See Abatie, 3 458 F.3d at 968. Therefore, the Court declines to include or weigh Broadspire’s alleged 4 conflict of interest while reviewing the plan administrator’s decision under an abuse of 5 discretion standard. 6 The Court will now turn to a more substantive review of the administrative record. 7 With respect to the April and May 2004 denial of benefits letters, Linich contends these 8 decisions were in clear error, See Boyd, 410 F.3d at 1178, since they were plainly 9 unsupported by substantial evidence found in the administrative record. See Snow, 87 F.3d 10 at 332. The Court agrees. 11 The only reasonable inference that can be drawn from a searching review of the 12 administrative record is that Broadspire’s initial decision relied exclusively on three 13 documents: Dr. Zide’s peer review report, the Employability Assesment Report and the 14 Labor Market Survey. There is nothing in the administrative record that would allow the 15 Court to conclude that Broadspire’s claim handlers, when denying Linich’s LTD claim in 16 April and May 2004, considered any part of Linich’s extensive medical history, which dated 17 back to early 1998. The April 2004 letter is two-pages long, makes no reference to any 18 medical documentation other than Dr. Zide’s peer review findings, and the overwhelming 19 majority of its text is lifted directly from that report. Similarly, the May 2004 letter utilizes 20 only the Employability Assessment and Labor Market Survey, and there is nothing in the 21 May 2004 denial letter to suggest that Broadspire reviewed any other medical evidence of 22 Linich’s alleged disability.4 As the Court will discuss, reliance on these documents was 23 highly problematic. 24 25 26 27 28 4 The Court is aware that Broadspire likely considered Dr. Zide’s peer report, since the May 2004 letter made passing reference to it. However, because the Employability Assessment and Labor Market Survey were in part based on Dr. Zide’s conclusions, that distinction is immaterial. Also, the Employability Assessment Report notes that the evaluator spoke with Linich over the telephone concerning her work history. - 17 - 1 With respect to Dr. Zide’s peer review report, which the April 2004 letter reiterated 2 almost verbatim, that document cannot be considered substantial evidence, since it was not 3 predicated upon a fair review of Linich’s complete medical records. Through no apparent 4 fault of his own, Dr. Zide’s evaluation of Linich’s claim was formulated after reviewing 5 documentation that had been faxed to Broadspire by Dr. Crowe on February 20, 2004. 6 Broadspire provided him with no additional material to consider, even though it had such 7 evidence in its possession.5 Additionally, the documents that were included in the Febraury 8 transmission consisted of no more than eight pages of office notes, a single APS and EPA 9 by Dr. Crowe, and one consultation report from Dr. Biesbroeck. The Court has gone 10 through these papers and finds them to be utterly lacking in specificity, breadth, or quality. 11 The eight pages of office notes are handwritten and barely legible. They simply do not 12 adequately represent Linich’s substantial medical history from 1997 through 2004. With 13 respect to Dr. Crow’s EPA, it contains nothing but a series of boxes that the treating 14 physician was supposed to scan through and then check off. 15 handwritten, terse, and of a generally poor quality. The APS and EPA do not contain much 16 of a narrative statement by Dr. Crowe, nor do they refer to or explain the years of treatment 17 that Linich had already received under his care. More problematic still, is the fact that Dr. 18 Zide did not have the opportunity to review a single document prepared by Dr. Bennett or 19 the reports from Drs. Ladin and Jou, which had been commissioned by Intracorp in 1999. 20 It is still not quite clear to the Court why Broadspire chose to contact Dr. Biesbroeck, but not The APS is similarly 21 22 23 24 25 26 27 28 5 It is settled that the district court may not look at new evidence to find a determination unreasonable because that evidence was not before the decision-maker at the time of the decision. Taft v. Equitable Life Assurance Soc'y, 9 F.3d 1469, 1472 (9th Cir. 1993). The administrative record consists of those materials in the record at the time Defendant's decision was made. Haynes v. United States, 891 F.2d 235, 238 (9th Cir.1989). In the instant case, Broadspire without question possessed more documentation relating to Linich’s claim than what was transmitted to Dr. Zide. At a minimum, Braodspire is charged with constructive knowledge of all documents that Linich submitted to previous plan administrators, Intracorp and Kemper, including the reviews conducted by Drs. Ladin and Jou. - 18 - 1 Dr. Bennett. 2 rheumatology specialist and had been treating Linich since 1998. See Sarchet v. Chater, 3 78 F.3d 305, 307 (7th Cir. 1996) (“[f]ibromyalgia is a rheumatic disease and the relevant 4 specialist is a rheumatologist.”). On the other hand, Dr. Biesbroeck is an endocrinonologist 5 who diagnosed Linich with Type II diabetes while briefly treating her in 2003, and Linich, 6 never claimed that her diabetic condition rendered her disabled or that her diabetes in any 7 way effected her CFS and Fibromyalgia diagnoses. Dr. Biesbroeck’s treatment history, 8 therefore, has limited relevance to the merits of Linich’s LTD claim. Another perplexing 9 aspect of Dr. Zide’s report is that his ultimate conclusion appears to be based in part on his 10 unsuccessful attempts to contact Dr. Crowe four times over a three-day period. Indeed, after 11 Dr. Zide noted that he had not been able to speak with Dr. Crowe, he wrote that in light of 12 the circumstances there was “no alternative but to find no support for functional 13 impairment.” (DSOF Exhibit 17.) 14 between the doctors, at a minimum Dr. Zide should not have formulated an opinion as to 15 Linich’s disability claim based in part on her treating physician not promptly returning 16 several phone calls over a condensed time period. This is particularly strange when one considers that Dr. Bennet is a Without assessing fault for the miscommunication 17 Similarly, the Employment Assessment and Labor Market Survey, which the May 18 2004 denial letter is predicated upon, are in clear error, since the results of these quantitative 19 studies are predicated upon Dr. Zide’s erroneous medical conclusions. Both reports state 20 that their findings were consistent with and utilized Dr. Zide’s medical opinion. In fact, Dr. 21 Zide’s report served as a house of cards, without which the findings of the Employability 22 Assessment and Labor Market Survey would not have been possible. Therefore, because Dr. 23 Zide’s report was in clear error due to its fundamentally flawed nature, reliance upon such 24 a document was also improper. “An opinion based on an incomplete set of assumptions 25 cannot be considered a valid basis for a determination.” O’hartz v. Cal. State Auto. Ass’n 26 Inter-Ins. Bureau Group Long Term Disability Plan, 2008 U.S. Dist. LEXIS 67625, at *26 27 (N.D. Cal. Sept. 3, 2008) (citing Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001)). 28 - 19 - 1 In its briefing, Broadspire contends that the burden was on Linich to prove she was 2 disabled, and that it did not fall upon the claims administrator to demonstrate the lack of a 3 disability. See Jordan, 63 F. Supp. 2d at 1157; Piscottano v. Metro. Life Ins. Co., 118 F. 4 Supp. 2d 200, 215 (D. Conn. 2000) (“Where, as here, the LTD Plan requires the claimant to 5 submit evidence of continuing disability, the burden of establishing disability lies on the 6 claimant, and the plan administrator is not required to prove that the claimant is not 7 disabled.”). Broadspire argues that Linich simply failed to present enough 8 evidence–subjective or otherwise–to convince its claim handlers that she was disabled in 9 April and May 2004. While as a general legal proposition Broadspire is correct, there are 10 two serious flaws with its contention. First, Broadspire controlled the information that was 11 requested, not Linich. It was Broadspire that sent out ambiguous and incomplete document 12 requests between November 2003 and February 2004. Judging from the series of letters that 13 were received by Linich and her doctors during that period of time, it is not readily apparant 14 whether Broadspire was seeking anything more than recent laboratory tests or updated 15 reports relating to Linich’s treatment. If in fact Broadspire was seeking Linich’s complete 16 medical file, it should have told her so and then in a straightforward manner requested such 17 information from her and her doctors.6 Broadspire cannot make a request for only a portion 18 of Linich’s medical file, neglect to serve that request on one of Linich’s two primary treating 19 physicians, and then deny Linich’s claim for a lack of medical evidence. Under the 20 circumstances, Linich should not be held accountable for errors committed by the claim 21 administrator in failing to contact Dr. Bennett, or for the confusion that occurred in the 22 transition between Kemper and Broadspire. 23 Secondly, even if Linich should have taken the initiative to send Broadspire her 24 records from Dr. Bennett or send an otherwise complete medical file to Broadspire, it 25 remains a mystery to the Court why Dr. Zide, the employability assessment evaluator and 26 6 27 28 The Court notes that there are several references to Dr. Bennett in the Febraury 20, 2004 materials; enough to have raised a serious questions in the mind of the claims handler or peer reviewing doctor as to the completeness of information they possessed. - 20 - 1 labor market surveyor did not have access to the 1999 reports by Drs. Ladin and Jou, since 2 these documents were certainly in Broadspire’s possession at the time.7 Furthermore, while 3 it is technically accurate for Broadspire to cite case law that places the burden of proof on 4 Plaintiff, not the plan administrator, the instant case is somewhat unique. Linich had already 5 been approved for LTD benefits in 1999 by Broadspire’s predecessor, and was subject to a 6 post facto review of her claim. (DSOF ¶9.) Because Linich had already been adjudicated 7 as disabled by a previous plan administrator, she and the two physicians that were contacted 8 in November 2003 would have been justified in taking Broadspire’s limited document 9 request at face value. See Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 10 863, 871 (9th Cir. 2008) (noting that applying for and receiving LTD benefits indicates a 11 claimant has already been deemed disabled under the terms of the plan). 12 In sum, there are too many gaps, inconsistencies and unanswered questions in 13 Broadspire’s April and May 2004 denial letters for reasonable minds to accept such evidence 14 as adequate to justify the denial of Linich’s LTD benefits. See Snow, 37 F.3d at 1404. The 15 Court therefore finds Broadspire initially abused its discretion in denying Linich’s LTD 16 claim in April and May 2004. However, the Court’s inquiry does not stop there. Rather, the 17 Court must turn to analyze whether, in light of the erroneous denial, Broadspire provided 18 Linich with an appellate justification that was strong enough to overcome its previous error. 19 To aid the Court with such a task, the Parties were directed at oral argument to file 20 supplemental briefing on this precise issue. (See Dkt.##70,71.) 21 With respect to the appellate process, Broadspire argues that because its ultimate 22 decision was based on a thorough review of Linich’s entire medical file and the medical 23 conclusions of ten peer reviewing physicians, under a deferential standard of review, that 24 decision should be affirmed. This Court agrees. First, both of Broadspire’s appellate 25 decisions adequately demonstrate that it had access to and considered Linich’s complete 26 7 27 28 The Court is unmoved by Broadspire’s attempt to downplay the significance of these reports by arguing that Dr. Jou “never reviewed [P]laintiff’s benefits claim under the appropriate standard,” i.e., an inability to perform any job. (See Dkt.#64 p. 10 n.5.) - 21 - 1 medical history. In Broadspire’s August 10, 2004 letter, Broadspire listed the documents 2 that it had considered in rendering its determination. These documents included, among 3 other things, Linich’s comprehensive history of medical treatment under her primary 4 physicians, the 1999 reports of Dr. Ladin and Jou, a Notice of Award of Benefits from the 5 Social Security Administration, and progress reports from Intracorp between 1996 and 1999. 6 Broadspire’s final determination letter, dated July 6, 2005, is even more comprehensive. 7 There is nothing in the record to suggest that Broadspire performed a half-hearted review of 8 this evidence, or “cherry-picked” it, as Linich contends, and the Court is unwilling to 9 conclude that Broadspire acted in bad faith. Next, Broadspire reasonably relied on its peer 10 review physicians–other than Dr. Zide–in upholding its denial of Linich’s LTD claim. 11 Before issuing its August 10, 2004 appeal, Broadspire contacted four doctors to review 12 Linich’s claim, and all four–Dr. Hoffman, Dr. Mendelssohn, Dr. Caldwell and Dr. 13 Bowman–concluded Linich was not disabled. Again, before it issued its final appellate 14 decision on July 6, 2005, Broadspire contacted four more doctors—Dr. Weinstein, Dr. 15 Rosenfeld, Dr. Burstein and Dr. Sherrer.8 Three out of those four reviewing physicians also 16 found Linich was not disabled under the meaning of the plan. While “[a]n ERISA 17 administrator's exercise of its discretion to adjudicate claims is not a mere exercise expert 18 poll-taking,” Boyd, 410 F.3d at 1179, Broadspire correctly points out that the overwhelming 19 20 21 22 23 24 25 26 27 8 The cumulative impact of these expert opinions is strong, even though the Court might be inclined to quibble with the purported utility of some of Broadspire’s reviewing physicians. For instance, the relative weight that should be given to Dr. Bowman’s opinion is low, since she in an endocrinologist, and her report focuses on Linich’s Type II diabetes, an irrelevant issue. Additionally, the opinions of Dr. Mendelssohn and Burstein, both psychologists, have diminished significance, since the Ninth Circuit “recognizes fibromyalgia as a physical rather than a mental disease.” Jordan, 370 F.3d at 873, 873 n.10 (citing Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 796, 799 (9th Cir. 1997)). Notwithstanding those three opinions, Broadspire may have more heavily relied on the conclusions of Dr. Hoffman, Dr. Caldwell, Dr. Weinstein, Dr. Sherrer, and Dr. Rosenfeld, who were all either internal medicine specialists, infectious disease specialists, or rheumatologists. Out of these physicians, only Dr. Rosenfeld found Linich disabled. 28 - 22 - 1 majority of doctors who looked at Linich’s claim concluded she was not disabled. It is worth 2 noting that these later physicians, unlike Dr. Zide, appeared to have had access to Linich’s 3 complete medical file. Several of them even spoke with Dr. Crowe and Dr. Bennett. That 4 the opinions of these doctors, who all performed a fair and full review of Linich’s claim, 5 conflict with those of Linich’s treating physicians, as previously mentioned, does not provide 6 grounds for finding that Broadspire abused its discretion. See Jordan, 370 F.3d at 875. In 7 light of the seemingly more comprehensive review performed by Broadspire during its 8 appellate process, this Court cannot conclude that Broadspire abused its discretion when it 9 ultimately denied Linich’s LTD claim—even if its initial determination was in clear error. 10 Linich raises one final point that is worth addressing. Linich argues that Broadspire 11 acted arbitrarily by requiring her to submit objective evidence of disability–in the form of 12 laboratory tests or other diagnostic test results–when such evidence, by definition, could not 13 plausibly exist given to the nature of Linich’s illnesses. The Court does not agree with this 14 characterization. Broadspire was not in fact asking for the impossible when it requested 15 additional information in May and August 2004. First, Linich was clearly not limited to 16 submitting objective evidence. For example, in August 2004, Broadspire told Linich that 17 she was entitled to update the administrative record to prepare for a final review of her claim, 18 Broadspire specifically asked for “any . . . pertinent medical information that you or your 19 provider feels would substantiate your disability.” While Linich could have provided the plan 20 administrator with objective test results to help substantiate her claim, Broadspire’s appellate 21 information requests were certainly not limited to such information. Secondly, Linich’s 22 focus on the supposed distinction between subjective and objective evidence is misplaced. 23 As the Ninth Circuit has noted, “[t]hat a person has a true medical diagnosis does not by 24 itself establish disability.” Jordan, 370 F.3d at 880. There is a world of difference between 25 requiring Linich to prove the accuracy of her CFS or Fibromyalgia diagnosis with something 26 like a simple blood test, which does not exist, and requiring Linich to submit additional 27 evidence, objective or otherwise, in order to verify the severity of her symptoms. The latter 28 would be proper a request, while the former would not. A plan administrator does not act - 23 - 1 unreasonably by requiring a plaintiff to submit additional evidence for the purpose of 2 determining whether symptoms of an inherently subjective disease, such as CFS or 3 Fibromyalgia, have manifested in such a way as to render the claimant disabled, and the 4 district court should not be in the habit of substituting its own judgment for that of plan 5 administrators. See Jordan, 370 F.3d at 875. 6 Accordingly, 7 8 9 10 IT IS HEREBY ORDERED granting Defendant’s Motion for Summary Judgment. (Dkt.#55). IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. DATED this 23rd day of March, 2009. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 24 -
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