Demer v. IBM Corporation Long Term Disability Plan et al, No. 4:2011cv00441 - Document 55 (D. Ariz. 2013)
Court Description: ORDER denying 28 Motion for Summary Judgment; granting 34 Motion for Summary Judgment. The Clerk of Court shall enter judgment in favor of defendants and close its file in this matter. Signed by Judge Jennifer G Zipps on 9/30/2013.(BAR) Modified on 9/30/2013 to reflect WO (BAR).
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Demer v. IBM Corporation Long Term Disability Plan et al 1 Doc. 55 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 Daniel G. Demer, Plaintiff, vs. IBM Corporation Ltd. Plan and Metropolitan Life Insurance Company, 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) CV-11-441-TUC-JGZ ORDER This matter arises under the Employment Retirement Income Security Act of 1974 (“ERISA”). Plaintiff Daniel G. Demer appeals Defendant MetLife’s denial of his application for long term disability benefits. The parties have filed the following cross motions for summary judgment and responses: Plaintiff’s Motion for Summary Judgment (Doc. 28); Defendants’ Response to Plaintiff’s Motion for Summary Judgment and Defendants’ CrossMotion for Summary Judgment (Doc. 34); Plaintiff’s Reply in Support of Plaintiff’s Motion for Summary Judgment and Plaintiff’s Response to Defendants’ Cross-Motion for Summary Judgment (Doc. 41); and Defendants’ Reply in Support of Defendants’ Motion for Summary Judgment. (Doc. 44.) For the following reasons, the Court will deny Plaintiff’s Motion for Summary Judgment and grant Defendants’ Cross-Motion for Summary Judgment. FACTUAL AND PROCEDURAL HISTORY A. The Plan The IBM Corporation Long Term Disability Plan (the “Plan”) provides benefits for participating employees who are “disabled” within the meaning of the Plan. (DSOF ¶ 1; Dockets.Justia.com 1 PRDSOF ¶ 1.)1 MetLife is contracted to act as Claims Adjuster and to fund long term 2 disability (“LTD”) benefits under the Plan. (Id.) The Plan provides: 3 7 In carrying out their respective responsibilities under the LTD Plan, the Plan Administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the LTD Plan and to determine eligibility for and entitlement to LTD Plan benefits in accordance with the terms of the LTD Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious. 8 (Doc. 36-3, Administrative Record (“AR”) 116.) The Plan thus delegates discretionary 9 authority to MetLife to determine who is and is not disabled as that term is defined in the 4 5 6 10 Plan. (DSOF ¶ 1; PRDSOF ¶ 1.) 11 During the first twelve months of qualifying sickness or injury, a participant is 12 “disabled” if he is unable to perform his regular duties with IBM because of sickness or 13 injury. (DSOF ¶ 2; PRDSOF ¶ 2.) This is commonly known as the “own occupation” 14 period. (Id.) After the expiration of twelve months, the Plan defines the term “disabled” 15 differently; “disabled means that, because of a sickness or injury, you cannot perform the 16 important duties of any other gainful occupation for which you are reasonably fit by your 17 education, training, or experience.” (Doc. 36-3, AR 107.) This is commonly known as the 18 “any occupation” period. (DSOF ¶ 3.) Among other limiting provisions, the Plan limits 19 benefits for mental or nervous disorders, except schizophrenia, dementia, or organic brain 20 disease, to a lifetime maximum of 24 months. (DSOF ¶ 7; PRDSOF ¶ 7.) Under the terms 21 of the Plan, entitlement to benefits ends when the participant no longer qualifies as disabled 22 or fails to provide proof of such disability. (Doc. 36-3, AR 113.) When a claim for disability 23 is made, the claimant must provide written evidence that establishes the nature and extent of 24 25 26 1 The parties’ statements of facts are abbreviated as follows: Plaintiff’s Statement of Facts (Doc. 29) - “PSOF”; Defendants’ Statement of Facts (Doc. 35) - “DSOF”; 27 Defendants’ Controverting Statement of Facts (Doc. 35) - “DCSOF”; Plaintiff’s Supplemental Statement of Facts (Doc. 42) - “PSSOF”; Plaintiff’s Response to 28 Defendants’ Statement of Facts (Doc. 43), “PRDSOF”; and Defendants’ Controverting Statement of Facts to Plaintiff’s Supplemental Statement of Facts (Doc. 45) - “DCSOF2”. 2 1 the loss or condition; MetLife’s obligation to pay the claim; and the claimant’s right to 2 receive payment. (Doc. 36-1, AR 24.) 3 B. 4 Demer’s Claim for LTD Benefits under the “Own Occupation” Definition of Disabled 5 Demer was employed by IBM and a participant/member of its group disability 6 coverage plan. (PSOF ¶ 1; DSOF ¶ 8.) Demer worked as the lead internal auditor/assessor 7 and earned approximately $76,000 annually before his last day of work on January 9, 2009. 8 (PSOF ¶ 2.) On that day, under the terms of the Plan, Demer began receiving Short Term 9 Disability (“STD”) benefits, which he continued to receive until they expired on July 10, 10 2009. (DSOF ¶ 8; PRDSOF ¶ 8.) 11 On March 4, 2009, Demer applied for LTD benefits, asserting that he was “unable to 12 do [his] job duties due to severe [and] recurrent depression and spinal stenosis, chronic 13 headaches.” (Doc. 37-5, AR 1202.) Demer stated that his symptoms appeared in March of 14 2008. (Id.) His symptoms included headaches, chronic neck and back pain, myalgia, and 15 sciatica. (Id.) Demer also stated “I do not know when I will be able to perform the duties 16 of my job.” (Id.) In support of his application for LTD benefits, Demer submitted the 17 “Statement of Attending Physician” from his treating psychiatrist, Donald J. Garland, Jr., in 18 which Dr. Garland diagnosed Demer’s primary ailment affecting work ability as a “major 19 depressive episode.” (Doc. 37-5, AR 1230.) Dr. Garland determined that Demer was totally 20 disabled but could return to work in approximately six months to one year. (Doc. 37-5, AR 21 1231.) 22 MetLife requested additional medical information from Demer to complete its 23 evaluation. (DSOF ¶ 12; PRDSOF ¶ 12.) In response, Dr. Garland faxed an Initial 24 Psychiatric History and Examination of Demer, which included notes from office visits. 25 (Doc. 37-5, AR 1161-1176.) In addition to diagnosing Demer with severe depression, Dr. 26 Garland noted that Demer suffered from Chronic Pain Syndrome and Bipolar Type II. (Doc 27 37-5, AR 1175; Doc. 37-3, AR 1068-69.) Dr. Garland stated that Demer “is not currently 28 able to engage in his usual occupation on a part or full time basis due to his problems with 3 1 concentration, intrusive depressive ideation with significant difficulty making decisions. He 2 would have problems in a work context due to his tearfulness and severe depression.” (Doc. 3 37-3, AR 1069.) 4 Demer’s chiropractor, David D. Heaton, D.C., who treated Demer from February 23, 5 2009 to April 2009, also provided office notes to MetLife. (DSOF ¶ 14.) Dr. Heaton 6 recommended that a functional capacity test be ordered. (Doc. 37-4, AR 1119-20.) Dr. 7 Heaton noted that Demer would struggle to sit for periods of time over thirty minutes, he 8 squirmed in his seat when speaking with the doctor for five minutes, he suffered headaches, 9 and he could not lift, carry, or handle anything for any length of time over one hour; Dr. 10 Heaton concluded, “Mr. Demers [sic] has significant stenosis and degenerative changes in 11 his spine.” (Doc. 37-4, AR 1119.) 12 MetLife also received office notes from Dr. Debra Weidman, Demer’s treating 13 anesthesiologist. Following his chiropractic treatment, Demer returned to Dr. Weidman on 14 April 7, 2009 for an epidural injection procedure. (Doc. 37-4, AR 1082.) Upon conducting 15 a physical exam, Dr. Weidman stated that “[h]e is alert, conversant and oriented x3.” (Doc. 16 37-4, AR 1083.) Dr. Weidman noted that “he really does not have much in the way of 17 radicular pain into his upper extremity. This seems to have quieted down since I had last 18 seen him for cervical epidural injection. He also tells me that his lumbar radioculopathy has 19 been quiet and has not bothered him since 2007.” (Id.) Her assessment noted that Demer 20 had a history of headaches, cervicogenic and tension; myofascial neck pain; mechanical 21 cervical pain with degenerative disk and facet disease; history of tobacco use; and long term 22 opiate therapy. (Id.) 23 Demer’s treating neurologist, Dr. David Weidman, provided MetLife with an 24 “Attending Physician Statement” based on an exam conducted on April 20, 2009. (Doc. 37- 25 4, AR 1086-87.) With regard to Demer’s physical capabilities, Dr. David Weidman was of 26 the opinion that Demer could sit and stand intermittently for four to five hours per day, walk 27 six to seven hours intermittently per day, frequently lift up to ten pounds, occasionally lift 28 up to twenty pounds, and never lift twenty-one to fifty pounds. (Doc. 37-4, AR 1086.) Dr. 4 1 David Weidman commented that he believed Demer’s inability to work was due to multiple 2 factors including “chronic pain and depression interact[ing] with each other,” and he did not 3 expect improvement in these areas. (Id.) Dr. Weidman also submitted to MetLife the results 4 of an Electromyography (“EMG”) conducted on July 21, 2009, which noted:“Normal study 5 of left upper extremity. No evidence for a upper cervical radiculopathy on left.” (Doc. 37-3, 6 AR 1056.) 7 C. MetLife Approves Demer’s “Own Occupation” Disability 8 To assess Demer’s depression, MetLife retained Independent Physician Consultant 9 (“IPC”) Ernest Gosline, M.D., F.A.P.A., Board Certified in Psychiatry, to review Demer’s 10 medical records and prepare an assessment. (Doc 37-3, AR 1040-44.) Dr. Gosline 11 concluded that Demer’s major depressive disorder, which is worsened by chronic pain, 12 limited his ability to work full time at IBM beyond July 1, 2009. (Doc 37-3, AR 1041-42.) 13 Based in part on Dr. Gosline’s assessment, MetLife determined that Demer met the 14 “own occupation” definition of “disabled” under the terms of the Plan. (DSOF ¶ 23; 15 PRDSOF ¶ 23.) Accordingly, on July 28, 2009, MetLife sent Demer a letter approving his 16 claim for LTD benefits. (Id.) The letter informed Demer that his “primary diagnosis” was 17 for a mental or nervous disorder, and therefore his LTD benefits are subject to a lifetime 18 benefit period of 24 months. (Doc. 37-3, AR 1052.) The letter also reminded Demer that 19 “after expiration of the [initial] 12 month period [of LTD benefits],” the definition of 20 “disabled” would change to the “any occupation” standard. (DSOF ¶ 23; PRDSOF ¶ 23.) 21 D. 22 Demer’s Claim for LTD Benefits under the “Any Occupation” Definition of Disabled 23 On November 19, 2009, MetLife sent Demer a letter informing him that to continue 24 receiving benefits beyond July 11, 2010, he “must be disabled from performing any 25 occupation. . . .” (DSOF ¶ 24; PRDSOF ¶ 24.) The letter also requested additional medical 26 information from Demer’s treating physicians. (Id.) 27 On January 21, 2010, MetLife Claims Specialist Meera Forbes spoke on the telephone 28 with Demer, who informed her that he continued to see his neurologist, Dr. David Weidman, 5 1 his anesthesiologist, Dr. Debra Weidman, his primary care physician, Dr. Moore, and his 2 psychiatrist, Dr. Garland. (Doc 38-1, AR 291-92.) Demer informed Forbes that he ceased 3 using the Fentanyl patch because it made him drowsy and supplanted it with morphine 4 sulphate 15 mgs 2x a day. (Doc 38-1, AR 292.) Demer stated that he was still in pain, but 5 “his primary condition is still being treated by his psych MD.” (Id.) Demer also stated that 6 he was to undergo a lumbar epidural procedure on January 26, 2010, to be performed by Dr. 7 Debra Weidman. (Doc 38-1, AR 291-92.) MetLife requested that Demer update his medical 8 information after he underwent the January 26, 2010 procedure. (Doc 38-1, AR 292.) The 9 following is a synopsis of the medical information provided to MetLife in support of Demer's 10 claim for LTD Benefits under the "any occupation" definition of disabled. 11 1. Dr. Debra Weidman 12 Dr. Debra Weidman, Demer’s treating anaesthesiologist, examined him on five 13 occasions between August 25, 2009 and January 26, 2010. (Doc. 37-3, AR 998-1004.) In 14 each physical exam, she noted that Demer was “alert, conversant and oriented x3.” (Id.) 15 Demer received his first lumbar epidural steroid injection on September 15, 2009. (AR 16 1002-03.) On December 9, 2010, Demer stated that his lower back and leg pain “definitely 17 responded” to the epidural steroid injection, but he was still bothered by neck pain and 18 headaches. (Doc 37-3, AR 999.) On January 26, 2010, Demer stated that his back and legs 19 are in pain: “He feels that the lumbar epidural steroid injections have given him the most 20 relief and it does seem to last. We had performed 1 injection back in September and it really 21 had not bothered him until just recently. It had not been perfect, but definitely under 22 control.” (Doc 37-3, AR 998.) Dr. Weidman conducted a second lumbar epidural steroid 23 injection. (Id.) Dr. Weidman noted that Demer seems to have not responded as well to 24 injections with regard to his chronic headache and neck and shoulder pain. (Id.) Dr. 25 Weidman’s assessment of Demer included: “(1) Low back pain with bilateral radicular 26 extremity pain[;] (2) Cervicalgia with mechanical neck pain[;] (3) Myofascial neck and 27 shoulder pain[;] (4) Chronic headaches, stress and cervicogenic[; and] (5) Long term drug 28 therapy.” (Id.) 6 1 2. Dr. David Weidman 2 Based on an examination conducted September 21, 2009, Dr. David Weidman, 3 Demer’s treating neurologist, noted that “lateral bending of the spine actually better than 4 extension, his ability to get into and up from a squat is quite good, he has a strong back, there 5 continues to be mild left more than right cervical paraspinal muscle spasm, and excess 6 straightening in the lumbar region.” (Doc. 37-2, AR 985.) Dr. Weidman wrote: 7 I conveyed to Daniel that the number of medicines he is on including Pristiq for mental health reasons, makes chronic pain management from a neurologic standpoint pharamacologically more constrained, but what I can offer are some holistic suggestions. I think Daniel should invest some time into 10 or 15 minutes of warm-up on his incliner home [sic] preceding initial stages of Yoga exercises, to stretch the body entirely. . . He is also staying active generally as above which is great. 8 9 10 11 12 (Doc. 37-2, AR 986.) 13 In an Attending Physician Statement dated February 3, 2010, Dr. Weidman concluded 14 that Demer could sit intermittently for four to five hours per day, stand intermittently for one 15 to two hours per day, and walk six to seven hours intermittently per day; he could 16 occasionally lift up to ten pounds, but no more. (Doc. 37-2, AR 983.) He opined that Demer 17 could reach above shoulder level and operate a vehicle, but he could not climb, twist, bend 18 and stoop. (Id.) Dr. Weidman noted that Demer could repetitively perform fine finger 19 movement and eye/hand movements, but he could not repetitively push and pull. (Id.) He 20 commented that Demer’s inability to work was due to multiple factors including “chronic 21 pain and depression interacting with each other,” and he did not expect improvement in those 22 areas. (Id.) 23 3. Dr. Donald Garland 24 On February 10, 2010, Dr. Garland, Demer’s treating psychiatrist, provided an 25 updated assessment. Dr. Garland determined that Demer suffered from major depression and 26 severe chronic pain syndrome. (Doc. 37-2, AR 978.) He stated that Demer’s depressed 27 mood caused him to exhibit lower concentration and focus. (Id.) Dr. Garland opined that 28 Demer may be able to return to work in August of 2010. (Doc. 37-2, AR 979.) 7 1 4. Dr. Stephen Moore 2 Dr. Moore, Demer’s primary care physician, provided MetLife with office notes from 3 multiple visits. Dr. Moore began treating Demer in May of 2005. (Doc 37-2, AR 925.) On 4 July 14, 2009, Dr. Moore noted: “The patient and I discussed the MRI findings, and I 5 suggested that his symptoms are probably related to muscular scar or spasm causing radicular 6 symptoms of the peripheral nerves distal to the spinal canal. We discussed the need for 7 massage, stretching, physical therapy, and heat.” (DSOF ¶ 34; PRDSOF ¶ 34.) Two weeks 8 later, on July 28, 2009, Dr. Moore described Demer as “doing fairly well” and noted that 9 Demer “is on medical disability leave for one year, but would like to consider getting into 10 teaching.” (DSOF ¶ 35; PRDSOF ¶ 35.) On September 18, 2009, Dr. Moore stated, “I 11 believe these headaches are part of his depression and stress response, probably be [sic] 12 muscle contraction. There is no evidence they’re migraine, nor does he have any evidence 13 of intracranial pathology.” (Doc. 37-2, AR 932.) Dr. Moore also noted that Demer “is 14 attempting to return to school, as he has been laid off from work.” (Id.) 15 On March 22, 2010, Dr. Moore examined Demer and prepared an Attending Physician 16 Statement. Dr. Moore noted that Demer had diffuse Degenerative Disc Disease (“DDD”) 17 of cervical, thoracic and lumbar spine, severe spinal stenosis and a herniated disc at L3-4. 18 (Doc 37-2, AR 925.) Dr. Moore stated that Demer could continuously sit for one hour per 19 day, stand continuously for less than one hour per day, and walk continuously for less than 20 one hour per day; he could frequently lift up to ten pounds, occasionally lift up to fifty 21 pounds, but never lift more than fifty pounds. (Doc. 37-2, AR 926.) He opined that Demer 22 could reach above shoulder level, operate a vehicle, twist, bend and stoop, but he could not 23 climb. (Id.) Dr. Moore noted that Demer could repetitively perform fine finger movement, 24 eye/hand movements, and push and pull movements. (Id.) He commented that Demer could 25 work zero hours per day because “chronic pain prevents sitting or standing longer than 30 26 min[utes] without moving. [Patient] has cognitive limitations [due to] pain as well as 27 analgesics.” (Id.) Dr. Moore stated that it was unknown whether Demer’s condition would 28 8 1 improve in any area. (Id.) In each visit, Dr. Moore described Demer as “alert, oriented, and 2 [an] appropriately responsive man, in NAD [no acute distress].” (Doc. 37-2, AR 928- 934.) 3 5. Dr. Robert C. Osborne 4 Demer was referred by Dr. Garland to Dr. Osborne in February of 2010. (Doc. 37-2, 5 AR 922.) Dr. Osborne’s office notes from February 23, 2010 state that Demer was 6 prescribed “Flexorol and Tramadol[;] Morphine (only a few tablets per month).” (Doc. 37-2, 7 AR 922.) A urine test revealed marijuana and benzodiazepines, which Demer stated he used 8 for pain relief. (Doc. 37-2, AR 923.) 9 Based on an examination of Demer conducted May 11, 2010, Dr. Osborne submitted 10 to MetLife an Attending Physician Statement (Doc. 37-2, AR 915-17) in which Dr. Osborne 11 concluded that Demer could sit intermittently for one hour per day; he could walk and stand 12 intermittently for less than one hour per day; he could never lift any weight up to ten pounds; 13 he could not reach above shoulder level, operate a vehicle, twist, bend, stoop, and climb. 14 (Doc. 37-2, AR 916.) Dr. Osborne opined that Demer had a “total disability.” (Id.) Dr. 15 Osborne diagnosed Demer with severe DDD and T 8 compression fracture with symptoms 16 of chronic intractable pain. (Doc. 37-2, AR 915.) On June 1, 2010, Dr. Osborne wrote a 17 letter to MetLife, stating “[i]t is my opinion that Mr. Demer has significant medical and 18 psychiatric problems and is absolutely unable to work at the present time and the future. I 19 needed to clarify this issue for all future communications with your company.” (Doc. 37-1, 20 AR 890.) 21 E. 22 MetLife requests Independent Physician Consultant (“IPC”) Review from Dr. Elyssa Del Valle 23 On June 21, 2010, MetLife forwarded the medical information provided by Demer to 24 Dr. Elyssa Del Valle, Board Certified in Internal Medicine, for her review and assessment 25 of Demer’s functional limitations beyond June 18, 2010. (DSOF ¶ 45; PRDSOF ¶ 45.) Dr. 26 Del Valle made the following findings: 27 28 The medical information does support functional limitations beyond 6/18/10 due to severe degenerative disc disease, degenerative vertebral disease with numerous levels of the cervical, thoracic, and lumbar spine associated with neural 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 foraminal narrowing as well as spinal stenosis. The condition is associated with chronic pain necessitating narcotic analgesics despite trigger point injections, cervical and lumbar epidural injections and physical therapy. He has had intervals in which his pain was lessened by these interventions but they were short lived. Since July 2008, the claimant’s chronic spinal condition with paravertebral muscle spasm has progressed and would reasonably impact functionality. There is some inconsistency between the APS [Attending Physician Statement] of Dr. Osborne and Dr. Moore. Dr. Osborne is less familiar with the claimant as the initial encounter was on 2/23/10. . . . The physical capacity noted by Dr. Moore and Dr. Osborne indicate that he can stand, walk and sit no more than an hour each in an 8 hour day. There is no evidence of a level of impairment to this extreme. This would indicate that the claimant is bedridden for more than 20 hours a day. . . . The APS by the neurologist, Dr. David Weidman is most clearly supported by the medical information in the file. . . . I concur with the restrictions/limitations noted in Dr. Weidman’s APS. Although it was dated 4/20/09, there are no clinical data/findings to indicate any change in his overall condition. I concur that the claimant must be restricted from any static positions longer than 30 minutes due to exacerbation of his pain syndrome. It will be important for him to be able to alter positions as often as needed as well as be able to stretch every hour as needed. I do not opine he can walk 7 hours a day, but closer to 3-4 hours intermittently in an 8 hour day. He would need to avoid walking down hill as this would extend his back and exacerbate symptoms related to spinal stenosis. He should avoid any prolonged periods of sitting, standing or walking more than 30 minutes. The medical indicates that his overall physical status is impacted by his skeletal disease as well as mechanical regarding muscular system. The claimant’s mental health issues are likely exacerbated by his physical condition as well. The restrictions and limitations noted above would be permanent as the claimant has likely reached maximal medical improvement. The goal of treatment will be to maintain his current function. 24 (Doc. 37-1, AR 884-85). Dr. Del Valle also referenced Dr. David Weidman’s findings from 25 an EMG of the upper extremities conducted on July 21, 2009: “The study was normal 26 without evidence of upper cervical radiculopathy on the left. There was no EMG submitted 27 of the lower extremities or reference to one.” (Doc. 37-1, AR 883.) 28 10 1 2 F. MetLife provides Dr. Del Valle’s Report to Demer’s Treating Physicians for Comment 3 MetLife sent Dr. Del Valle’s IPC Report to Plaintiff’s treating physicians for their 4 review and comment. Dr. Osborne submitted a letter on August 24, 2010 which stated, “I 5 have completed most of my examinations. I have tried to compare them with previous x-rays 6 and MRIs. I am perplexed by the conclusions reached by Dr. Balle [sic] considering the 7 progressive degenerative changes elucidated by both of the previous x-rays and MRIs as well 8 as the current ones.” (Doc. 37-1, AR 829.) Dr. Osborne commented that he has “often 9 wondered how one comes up with these calculations such as ‘walk five hours, work seven 10 hours’ . . . Perhaps a functional capacity evaluation would be helpful in this case?” (Doc. 37- 11 1, AR 830.) Dr. Osborne concluded, “I can only reiterate that my clinical practice validates 12 the significant limitations that I assigned to this gentleman.” (Id.) 13 On August 25, 2010, Demer’s attorney sent MetLife a test study performed by Dr. 14 Osborne. (DSOF ¶¶ 54-55; PRDSOF ¶¶ 54-55.) After diagnostic evaluation of Demer, Dr. 15 Osborne concluded: the Somato Sensory Evoked Potentials (“SSEP”) indicated “a 16 prolongation from the Posterior Tibialis Nerve to the Cerebral Cortex. This blockage is at 17 the cervical spine level and consistent with other diagnostic studies.” (Doc. 39-4, AR 810.) 18 MetLife forwarded the new diagnostic studies to Dr. Del Valle for her review. (DSOF 19 ¶ 57; PRDSOF ¶ 57.) On August 31, 2010, after considering Dr. Osborne’s supplemental 20 examinations, Dr. Del Valle provided an Addendum to her review. (Doc. 39-4, AR 812.) 21 Dr. Del Valle found that the “MRI of C spine dated 7/16/10 notes ‘no significant change 22 compared to 6/22/09.’ The study of the 6/22/09 MRI was noted in my previous IPC review. 23 The only changes noted may be the development of mild neural foraminal narrowing at C6-7. 24 It was noted previously in my review that he has significant DDD with severe changes at C6- 25 7. The other levels noted ‘this is similar to prior exam.’” (Id.) Dr. Del Valle explained: 26 27 28 The additional information indicates continued significant DDD of the cervical and lumbar spine which was noted in my previous review. The new cervical MRI performed after my 6/21/10 review demonstrates some minor progression, however the radiologist noted as “1) no significant change compared to 6/22/09". The SSPE study was helpful to determine presence of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 radioculopathy, however this was an [sic] expected given the findings on lumbar MRI from August 2008. SSPE is however limited as it cannot determine etiology or determine treatment. It cannot determine progression as there are no previous studies to compare. Additionally, it cannot be used to determine his clinical functionality. It is unknown why he has not had another evaluation with MRI of the lumbar spine over the past 2 years. It may be due to the fact he has done well with the epidural injections. If he was deemed incapable of walking more than an hour per Dr. Osborne’s APS, it would seem to warrant neurosurgical intervention or at least evaluation by neurosurgery for possible decompression. Again, there is no study provided that indicates any particular change in his lumbar spine condition since August 2008. I do opine that the SSPE does indicate ongoing nerve compression which warrants additional evaluation as to direct optimal care. As Dr. Osborne commented, it is unknown what his functional capacity is regarding how much he can walk, stand and sit as there has been no functional capacity exam performed. Despite this, I do concur that the claimant is functionally impacted as noted in my previous review. I still contend it is reasonable for the claimant to be capable of using his hands, fingers without limitations. This is supported by normal upper extremity EMGs on 7/21/09 as well as no evidence of atrophy or loss of muscle tone of the upper extremities, hands and fingers. Thorough physical exam in February 2010 by Dr. Osborne noted normal motor strength of his extremities. I continue to opine he could be capable of sit/stand and walk with no static positions of more than 30 minutes. . . . I do opine he is unable to walk, stand for any prolonged periods due to severe Lumbar DDD. He was able to perform his job duties at the time the MRI was performed on 8/26/08. There is no documentation to indicate any progression in his lumbar disease that would preclude his ability to walk and stand with accommodations to change positions as needed. . . . As for the diagnosis of migraines, this condition would impact his ability to work during an acute migraine attack. . . . [T]here is no clinical data/finding to indicate continual functional impairment beyond 6/18/10 due to migraines. . . . Summary of reasonable R/Ls [Restrictions/Limitations] are as follows based on the medical received: . . . I would alter my previous opinion regarding walking/standing from Dr. Weidman’s opinion to walk 2 and stand 2 in an 8 hour work day. He should be capable of sitting 4-6 hours per day as long as he has proper ergonomics at work desk and can change positions as needed for comfort. . . . He has earned teaching credentials this past spring indicating his goals include activities consistent with the above R/Ls. He should be encouraged rather than restricted from activities of ADLs [Activities of Daily Living]. These restrictions/limitations would meet the level to perform ADLs and work duties with the above accommodations. 28 12 1 (Doc. 39-4, AR 813-15.) 2 G. MetLife Denies Demer Benefits Under “Any Occupation” Definition of Disability 3 Utilizing the findings of Dr. Del Valle, MetLife conducted an Employment 4 Assessment and Labor Market Analysis (“LMA”). (Doc. 39-4, AR 785-77.) The analysis 5 concluded: 6 7 8 9 10 11 Mr. Demer has transferable skills for other occupations as based on his training, education, and experience. He has the ability to work at the sedentary to light level of physical exertion with the restrictions and limitations as stated above in the MEDICAL HISTORY section. An Employment Assessment and LMA were performed which identified four occupations for which Mr. Demer is qualified and which are found to exist in his geographical area. Additionally, a search using Indeed.com indicated job openings for the above identified occupations. (Doc 39-4, AR 787.) 12 On October 1, 2010, MetLife sent Demer a seven page letter detailing MetLife’s 13 review of his LTD benefits claim and supporting medical information. (Doc 39-4, AR 776- 14 82.) Among other things, MetLife found: 15 16 17 18 19 20 21 22 23 24 25 26 27 The medical information on file does support functional limitations due to severe degenerative disc disease, degenerative vertebral disease with numerous levels of the cervical, thoracic and lumbar spine. The chronic pain associated with the conditions necessitates narcotic analgesics despite trigger point injections, cervical and lumbar injections and physical therapy. The restrictions and limitations provided by Dr. Osborne and Dr. Moore are severe and would indicate that you are bedridden 20 hours a day. Medically supported restrictions were determined as follows by an independent physician: Change position every 30 minutes, walk 3-4 hours intermittently in an 8 hour day, avoid walking downhill, avoid prolonged periods of sitting, standing or walking for more than 30 minutes. . . . In summary, the medically supported restrictions and limitations per a[n] Independent Physician Reviewer are as follows: No lifting more than 25 pounds and no frequent lifting more than 10 pounds. No frequent overhead work, limited climbing, twisting and stooping. No prolonged sitting or any static positions more than 30 minutes. No prolonged walking or standing for more than 30 minutes. Sitting 4-6 hours per 8 hour day with proper ergonomics and the ability to change position as needed. . . . 28 13 1 Based on this information, you should be able to perform at the sedentary to light level of physical exertion as defined by the U.S. Department of Labor. . . . 2 3 7 The results of our employment analysis support the vocational conclusion that suitable vocational alternatives potentially exist in reasonable numbers in your local economy, and these occupations will provide earnings at the gainful employment level. According to your LTD plan, gainful employment is defined as occupations that you are reasonably qualified based on your education, training, experience, and functional ability, and provides gainful wages of $4,240.48 per month or $24.46 hourly. 8 (Doc. 39-4, AR 778-81.) MetLife thus determined that Demer was not disabled within the 9 meaning of the Plan and terminated his benefits in October 2010. (Doc. 39-4, AR 781-82.) 4 5 6 10 H. Demer’s Appeal of MetLife’s Termination of Benefits 11 On March 28, 2011, Demer filed an appeal with MetLife. (DSOF ¶ 68; PRDSOF ¶ 12 68.) The appeal made no mention of Demer’s depression, but attempted to rebut Dr. Del 13 Valle’s medical opinion with opinions from Dr. Osborne. (Id.) In the appeal, Demer argued 14 that MetLife failed to consider the effect of his medications on his job performance. (DSOF 15 ¶ 71; PRDSOF ¶ 71.) 16 Dr. Osborne submitted to MetLife a Review and Criticism of the MetLife 17 determination of October 1, 2010 and the IPC review by Dr. Del Valle. (Doc 39-3, AR 720- 18 23.) Dr. Osborne asserted that a comparison of the MRIs of 6-22-09 and 7-16-10 19 demonstrated that Demer’s disease had progressed. (Doc. 39-3, AR 721.) He also explained 20 that the SSPE of the Posterior Tibial Nerve was ordered “to eliminate foraminal narrowing 21 L5 and review the spinal nerve conduction from a different branch of the sciatic nerve.” (Id.) 22 The results of the SSPE “obviate[d] the previous L5 (Extensor Digitorum Brevus) 23 consideration as the sole nerve deficit.” (Id.) Dr. Osborne stated that “the overall picture is 24 one of a gentleman with severe spinal deterioration at all components of the spine as well as 25 neurophysiological evidence of a delayed conduction (spinal cord problem) of the bilateral 26 Posterior Tibial Nerves to the cerebral cortex as well as a separate left L5 nerve root legion.” 27 (Doc. 39-3, AR 721-22.) To treat Demer’s condition, chronic narcotic medication had been 28 prescribed, which Dr. Osborne opined has side effects that “limit the ability to complete 14 1 productive mental functions.” (Doc. 39-3, AR 722.) Dr. Osborne thus concluded, “It is also 2 my consideration that Mr. Demer will never again be able to complete a gainful employment 3 or occupation.” (Id.) 4 MetLife referred Demer’s medical information, including Dr. Osborne’s comments 5 regarding the effects of [Demer’s] pain medications, to Medical Consultants Network 6 (“MCN”) to determine whether “there was clinical evidence to support restrictions and 7 limitations and/or side effects resulting from the medications taken” by Demer. (DSOF ¶ 74; 8 PRDSOF ¶ 74.) MCN contracted with Marcus Goldman, M.D., Board Certified in 9 Psychiatry, who prepared a written opinion based on a “page-by-page review of [the] 400- 10 page record.” (Doc. 39-2, AR 664-65.) In response to the question, “[d]oes the medical 11 information support (psychiatric) functional limitations beyond 10/29/2010,” Dr. Goldman 12 answered that “claimant is not seen with a frequency or intensity that would be deemed 13 appropriate for the level of afunctionality reported by the claimant’s providers.” (Doc. 39-2, 14 AR 668.) Dr. Goldman explained: 15 18 [t]he claimant is not objectively noted to be obtruded, lethargic, or with altered sensorium or intoxication. At no time was there any data to support significant cognitive dysfunction in any quantified or otherwise objective fashion. While Dr. Osborne suggested that the claimant is using marijuana, there [is] no data detailing the specifics of the claimant’s use. There is no mention of chemical dependency assessment, for example. 19 (Id.) He also noted that “[g]iven the lack of recent data and the paucity of any compelling 20 objective findings, as well as the lack of serial mental status examinations, this reviewer 21 would be unable to establish the presence of an impairing mental condition.” (Id.) MetLife 22 also asked Dr. Goldman to opine whether “there is clinical evidence to support restrictions 23 and limitations and/or side effects resulting from the medications taken by this claimant, from 24 beyond 10/29/2010.” (Doc. 39-2, AR 668.) Dr. Goldman responded: “Beyond October 29, 25 2010, there clearly are no objective or other compelling or convincing data to establish 26 functional impairment as a result of Mr. Demer’s psychotropic medications.” (Id.) 16 17 27 MetLife also referred Demer’s medical file and supporting documentation for LTD 28 benefits to Dennis S. Gordan, M.D., Board Certified in Physical Medicine and Rehabilitation, 15 1 Board Certified in Internal Medicine. Dr. Gordan prepared an eighteen-page review; twelve 2 pages were devoted to summarizing the treating physicians’ findings and Demer’s 3 medications. (Doc. 39-2, AR 645-63.) 4 Dr. Gordan attempted to speak with Demer’s treating physicians, including Dr. 5 Osborne. (Doc. 39-2, AR 661-62.) After multiple attempts to contact Dr. Osborne, Dr. 6 Gordan was informed by a woman named Beth that Dr. Osborne stated that he did not wish 7 to speak with him and planned to “let the affair go to trial.” (Doc. 39-2, AR 661.) Dr. 8 Gordan informed Beth that it was his opinion that Demer “did not have migraine headaches, 9 and that the evoked potentials and electrodiagnostic testing were not indicative of either 10 myelopathy or radiculopathy, so that if Dr. Osborne wanted to call back to discuss this, that 11 would be fine.” (Id.) 12 On April 13, 2011, Dr. Gordan spoke with Dr. David Weidman, who informed Dr. 13 Gordan that the last time he had seen Demer was in January 2010. (Doc. 39-2, AR 662.) Dr. 14 Weidman stated that “he had not ordered somatosensory evoked potentials for quite some 15 time, since he found that they did not add anything beyond other testing. . . . He had not ever 16 thought that the claimant had migraine headaches.” (Id.) 17 Also on April 13, 2011, Dr. Gordan spoke with a supervisor named Dave from the 18 neurophysiology lab where the somatosensory evoked potentials had been done. (Doc. 39- 19 2, AR 663.) “Dave indicated that, although not on the report, nerve conduction test had been 20 done when the evoked potentials were performed, and the conduction velocities were 21 decreased. He also said that the delay in the P40 wave could be from peripheral neuropathy, 22 radiculopathy, or some cord lesion.” (Id.) 23 24 25 26 27 28 On April 15, 2011, Dr. Gordan spoke with Dr. Moore. (Doc. 39-2, AR 662.) Dr. Gordan’s note indicate that Dr. Moore related: [H]is nurse practitioner had seen the claimant twice and he had seen him once (1/24/11) during the period in question. Dr. Foote, the neurologist who had conducted the EMG, had seen the claimant on 2/21/11, at which point Dr. Foote wrote that the claimant appeared to have muscle contraction headaches. Dr. Foote also wrote that the claimant had demonstrated an Allman neuropathy on EMG on one occassion and had a question of 16 1 lumbar radiculopathy on another EMG. The claimant had also been seen by Dr. Baron, an orthopedic surgeon, on 10/29/10. Dr. Baron thought the claimant had cervical and lumbar degenerative joint disease and radiculopathy, and spinal stenosis in the neck at least, for which he thought lumbar decompression had a decent chance of yielding improvement, but cervical surgical prognosis was guarded. Dr. Moore said that when the claimant was seen in January, he had difficulty walking into the office and was taken in by wheelchair to the examining room. As far as he knew, the claimant could do a very sedentary job, but he felt that he would have to see him again to say that definitely. He recognized that depression and chronic pain syndrome were playing roles in the claimant’s total symptomatology. 2 3 4 5 6 7 8 9 (Id.) 10 MetLife asked Dr. Gordan to answer the following question after a review of Demer’s 11 medical file and interviews with Demer’s treating physicians: “Do the physical conditions 12 alone, and or combined result in continuous physical functional impairment, and restrictions 13 and limitations (temporary or permanent), specific to the period beyond 10/29/10, as 14 supported by clinical findings?” (Doc. 39-2, AR 650.) Dr. Gordan answered: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The claimant has headaches and multiple areas of pain, with documented anatomical cervical spinal stenosis, degenerative disc disease, and degenerative facet disease of the spine, as well as degenerative arthritis of the left hip, status post some type of hip procedure. There has been, however, no evidence of sphincter dysfunction, long tract signs, or intrinsic cord signal abnormalities to suggest that spinal stenosis had yielded cervical myelopathy. Dr. Osborne’s interpretation of the evoked potential and electrodiagnostic testing is incorrect. The prolongation of the P40 wave, taken alone, says only that there is delay in conduction somewhere between the stimulation site in the leg and the brain. Given the slowed peripheral nerve conduction reported to me by the testing lab, it is even less clear what caused the prolongation. If the claimant had an L5 radiculopathy, as Dr. Osborne asserts, there would be yet another reason for prolongation, but the lower limb electrodiagnostic testing does not even claim to clearly demonstrate a radiculopathy, conceding that the fibrillations in the extensor digitorum brevis could be from neuropathy or a root lesion. Single muscle abnormalities, however, should never be attributed to radiculopathy [especially, but also to neuropathy], and this is doubly so in the extensor digitorum brevis, which is notoriously frequently damaged locally by trauma. . . . The claimant does have headaches, but as everyone except Dr. Osborne has said, these appear to be muscle contraction headaches. Dr. Osborne’s statement about overwhelming 17 1 migraines has no basis. His assertion that the trigeminal nucleus was the etiology for cervicogenic headache was at odds with the neurologist’s assessment and appears specious. . . . 2 3 9 In summary, the claimant likely has a modicum of discomfort from muscle contraction headache, neck and back pain related to spinal degeneration, and referred pain down the limbs from those degenerative changes. His own assessments of his capabilities would be adversely affected by his depression, but he would appear to be capable of sitting for an hour at a time, with short breaks for stretching, and up to 7 hours a day, standing and walking for 15 minutes at a time and up to 2 hours a day, lifting up to 10 pounds frequently, 20 pounds occasionally and 35 pounds rarely; occasionally twisting, bending, stooping, and reaching above shoulder level, driving, and doing repetitive movements with either hand. He could occasionally climb stairs only. 10 (Doc. 39-2, AR 650-51.) MetLife also asked the doctor to opine “whether there is clinical 11 evidence to support restrictions and limitations and/or side effects resulting from the 12 medications taken by this claimant, from beyond 10/29/2010.” (Doc. 39-2, AR 651.) Dr. 13 Gordan answered, “[t]here is no specific information about medications taken or effects from 14 them during the period in question. Although Dr. Osborne asserted that the claimant’s 15 needed narcotic medication caused cognitive side effects, there was never any evidence of 16 that.” (Id.) 4 5 6 7 8 17 On May 6, 2011, after reviewing “Mr. Demer’s entire claim,” Metlife sent Demer a 18 letter affirming its decision to terminate Demerr’s benefits beyond October 29, 2010. (Doc. 19 39-1, AR 514-20.) MetLife noted among its findings, that “[a] cervical spine magnetic 20 resonance imaging (MRI) done [sic] completed on July 16, 2010 showed no significant 21 changes compared with the June 22, 2009 cervical spine MRI.” (Doc. 39-1, AR 515.) The 22 letter concluded: 23 24 25 26 27 28 Based on our review of the information provided, we have determined there was insufficient information to support any restrictions or limitations that would deem Mr. Demer unable to work in any gainful occupation for which he is qualified taking into account his training, education and experience. The medical information in totality does not support any physical or psychiatric restrictions or limitations that would have precluded Mr. Demer from performing any occupation beyond October 29, 2010, and therefore, the previous decision to terminate LTD benefits for the time period in question was appropriate and remains in effect. 18 1 2 (Doc. 39-1, AR 519.)2 DISCUSSION 3 4 The purpose of ERISA is “to protect ... the interests of participants in employee 5 benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants 6 and beneficiaries of financial and other information with respect thereto, by establishing 7 standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, 8 and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.” 9 29 U.S.C. § 1001(b). 29 U.S.C. § 1132(a)(1)(B) provides that a participant in an employee 10 benefit plan may bring a civil action “to recover benefits due to him under the terms of his 11 plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits 12 under the terms of the plan.” Demer initiated this action pursuant to ERISA seeking 13 disability benefits under IBM’s long-term disability plan. STANDARD OF REVIEW 14 15 The district court reviews a denial of plan benefits “under a de novo standard” unless 16 the plan provides to the contrary. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 17 (1989). Where the plan provides to the contrary by granting the administrator or fiduciary 18 discretionary authority to determine eligibility for benefits, a deferential standard of review 19 is appropriate. Id. Deference means that a plan administrator’s interpretation of the plan 20 “will not be disturbed if reasonable.” Conkright v. Frommert, 559 U.S. 506, 521-22 (2010). 21 Under the reasonableness standard, a plan administrator abuses its discretion when its 22 determination is “(1) illogical, (2) implausible, or (3) without support in inferences that may 23 be drawn from the facts in the record.” Salomaa v. Honda Long Term Disability Plan, 642 24 The Court will not consider the additional medical documentation Demer submitted to MetLife after its final decision because the documentation was not provided to or considered by MetLife prior to MetLife’s final denial of Demer’s LTD 26 claim. See Abatie v. Alta Health & Life Ins Co., 458 F.3d 955, 970 (9th Cir. 2006) (“in general, a district court may review only the administrative record when 27 considering whether the plan administrator abused its discretion. . .”); see also Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 632 n.4 (9th Cir. 2009) 28 (“In the ERISA context, the ‘administrative record’ consists of ‘the papers the insurer had when it denied the claim.’”) (citation omitted). 2 25 19 1 F.3d 666, 675-76 (9th Cir. 2011). To find an abuse of discretion, the court must be left with 2 a “definite and firm conviction that a mistake has been committed.” Id. at 676. Where the 3 plan administrator both pays benefits and determines eligibility for those benefits, the abuse 4 of discretion standard still applies. See Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 5 115 (2008). A plan administrator’s conflict of interest is a factor that the Court must weigh 6 in determining whether the plan administrator’s denial of benefits was reasonable. Id. at 117. 7 In this case, the Plan provides MetLife discretionary authority to determine eligibility 8 for LTD benefits, and MetLife’s “discretionary authority shall be given full force and effect, 9 unless it can be shown that the interpretation or determination was arbitrary and capricious.” 10 (Doc. 36-3, AR 116.) Thus, the Court will review MetLife’s denial of benefits for abuse of 11 discretion.3 Under the abuse of discretion standard, the Court will analyze the effect, if any, 12 MetLife’s conflict of interest had on its determination to deny Demer LTD benefits. 13 The Court’s review is generally limited to the Administrative Record. See Abatie v. 14 Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir. 2006). The Court, however, may 15 consider evidence outside the Administrative Record as it pertains to the conflict of interest 16 factor. Id. 17 ANALYSIS 18 Plaintiff challenges MetLife’s denial of benefits on two grounds: (1) MetLife operated 19 under a conflict of interest which caused it to unreasonably deny Plaintiff’s claim; and (2) 20 MetLife’s decision was arbitrary and not supported by the evidence in the record. After 21 considering MetLife’s structural conflict of interest and the Administrative Record, the Court 22 finds that MetLife’s denial of LTD benefits was reasonable. 23 In determining the scope of MetLife’s conflict of interest, the Court examines several 24 factors including history of biased claims administration, evidence of procedural 25 26 3 Where the decision to grant or deny benefits is reviewed for abuse of discretion, a motion for summary judgment is merely the conduit to bring the legal question before the 27 district court and the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, do not apply. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 28 942 (9th Cir. 1999). 20 1 unreasonableness, emphasis on medical reports favoring denial coupled with de-emphasis 2 of reports suggesting a contrary conclusion, failure to provide independent vocational and 3 medical experts with all of the relevant evidence, and the ultimate adequacy of the record’s 4 support for the agency’s factual conclusion. See Glenn, 554 U.S. at 118. In the present case, 5 Demer contends that MetLife’s conflict of interest is demonstrated by its history of claims 6 administration, its emphasis on medical reports favoring denial coupled with de-emphasis 7 of reports suggesting a contrary conclusion, and the ultimate lack of support for the agency’s 8 factual conclusion. Because the second and third of these factors necessitate a review of 9 MetLife’s decision on its merits, the Court will consider them in the context of Plaintiff’s 10 claim that MetLife’s decision was arbitrary and not supported by the evidence in the record. 11 A. 12 MetLife’s alleged history of claims administration does not demonstrate that MetLife operated under an impermissible conflict of interest in this case 13 Demer contends that MetLife has a history of biased claims administration and 14 therefore the Court should conclude that MetLife operated under an impermissible conflict 15 of interest in denying Demer’s claim. In support of this argument, Plaintiff offers citation 16 to cases holding that MetLife acted in a capricious and arbitrary manner. The Court finds 17 such citation minimally probative to substantiate a claim that the administrator has a history 18 of biased claim determinations. See Watts v. Metropolitan Life Ins. Co., 2011 WL 1585000, 19 *13 (S.D. Cal. April 26, 2011) (“a history of biased claims administration is not evidenced 20 by mere citation to specific decisions criticizing claim determinations.”) For the years 2009 21 through 2011, MetLife received a total of 917,203 claims; Plaintiff’s citation to a handful of 22 opinions - not including opinions upholding MetLife’s denial of benefits - fails to convey a 23 history of biased claims handling. Cf Glenn, 554 U.S. at 117 (finding evidence of history of 24 biased claims administration in a law review article summarizing one insurance company’s 25 history). 26 In addition, the Court notes that a plan administrator’s structural conflict of interest 27 “should prove less important (perhaps to the vanishing point) where the administrator has 28 taken active steps to reduce potential bias and to promote accuracy.” Id. at 117. The Court 21 1 finds that MetLife has taken affirmative steps to reduce potential bias and promote accurate 2 claim determinations.4 3 department. (DSOF ¶ 90.) The claims and appeals specialists do not report to, and are 4 geographically separate from, the finance department. (Id.) MetLife’s finance department 5 employees do not make, direct or have any association with claims decisions. (DSOF ¶ 91.) 6 Metlife’s claims and appeals specialists receive no financial benefit or performance 7 recognition based upon either the value or number of claims they deny or terminate. (DSOF 8 ¶ 92.) Under the Plan, IBM could determine in any Plan year to self-fund benefits, yet 9 MetLife would still act as claims administrator. (DSOF ¶ 94.) Of the group disability 10 claims received by MetLife, only a small percentage of claims are sent to IPCs or other third- 11 party vendors that retain IPCs to perform independent reviews. (DSOF ¶ 95.) Based on 12 information available for the years 2009 through 2011, MetLife sent 33,248 referrals of 13 claims for group disability benefits for independent medical review, which included not only 14 initial referrals but referrals for addendum opinions. (Id.) Based on information available 15 for the years 2009 through 2011, MetLife received a total of 917,203 claims for group 16 disability benefits; MetLife approved for payment of benefits a total of 750,916 claims, thus 17 denying 176,133 claims. (DSOF ¶ 96.) MetLife walls off its claims department from its financing 18 Moreover, the Court finds that the Social Security Administration’s (“SSA”) 19 determination supports MetLife’s review of the medical evidence. Demer submitted a 20 21 22 23 24 25 26 27 28 4 Plaintiff objects to DSOF ¶¶ 90-96, contending that the declarations of Gregory Hafner and Laura Sullivan were not timely disclosed, and therefore should not be considered. (PRDSOF ¶ 90.) Demer asserts that consideration of these documents will prejudice him because late disclosure eliminated his opportunity to conduct discovery and examine the accuracy of these statements. (Id.) Plaintiff’s claim that he did not have an opportunity to conduct discovery into this matter is specious. As an appeal from an administrative record, this case is exempt from disclosure requirements. See Fed. R. Civ. P. 26(a)(1)(B)(i). Nonetheless, in Plaintiff’s initial Rule 26(a)(1) disclosure statement, he expressed his intent to take Rule 30(b)(6) depositions of MetLife to discover whether MetLife had procedures in place that could lead to evidence of bias in its claim handling process. (Doc. 44-1, Exh. B at p. 2.) Plaintiff failed to conduct such discovery. Notably, the Ninth Circuit has stated that a conflicted administrator “may find it advisable to bring forth affirmative evidence that any conflict did not influence its decision making process.” Abatie, 458 F.3d at 969. The Court will therefore take into consideration the affidavits submitted by MetLife concerning its efforts to ameliorate its structural conflict of interest. 22 1 disability claim to the SSA. The claim was not decided by a Administrative Law Judge but 2 by “trained staff.” (PRDSOF ¶ 67; DCSPSSOF ¶ 93.) The SSA concluded the following: 3 “While you do experience pain and discomfort due to your physical condition, the medical 4 evidence shows you are able to move about. You are able to walk without assistance and to 5 use your arms and legs in a satisfactory manner. The evidence shows your headaches are 6 controlled with medication.” (DSOF ¶ 67; DCSPSSOF ¶ 93.) Although not a decision by 7 an administrative law judge, the SSA’s findings support the objectivity of MetLife’s review 8 of the medical evidence. Accordingly, the Court concludes that MetLife’s structural conflict 9 of interest did not influence its decision to deny Demer’s claim. 10 11 B. In denying Demer’s claim, MetLife did not overly emphasize medical reports favoring denial or reach a conclusion which lacked support in the record 12 Demer claims that MetLife’s decision to deny benefits was arbitrary and capricious 13 because it relied on the biased opinion of Drs. Del Valle, Gordan and Goldman. The Court 14 concludes that these doctors were not influenced by bias and that MetLife properly reviewed 15 the evidence in Demer’s medical file and considered the medical opinions that supported a 16 finding of disabled.5 17 1. 18 Plaintiff contends that Dr. Del Valle agreed with many of the treating physicians 19 diagnoses, but refused to find that Demer was disabled. Plaintiff concludes that this result 20 21 Dr. Del Valle’s opinion can only be explained by Dr. Del Valle’s desire to please her employer.6 The Court 5 In so concluding, the Court rejects Demer’s implication that medical professionals retained by MetLife are always biased. The Court notes that MetLife approved Demer’s claim for LTD benefits under the “own occupation” definition of 23 disabled based on Dr. Gosline’s assessment. Dr. Gosline was an IPC retained by MetLife similiar to Dr. Del Valle, Dr. Goldman, and Dr. Gordan. 22 24 6 Plaintiff disputes Dr. Del Valle's independence from MetLife. (PSOF ¶ 15.) Plaintiff notes that during calendar year 2010, Dr. Del Valle prepared 215 reports and 47 addendums for MetLife, and earned $137,403.75. (PSOF ¶ 15.) In 2009, Dr. Del Valle 26 earned $167,640.00. (PSOF ¶ 16.) From January 11th to May 11th of 2011, Dr. Del Valle earned $52,346.25. (Id.) Defendants rebut Plaintiff's assertion that Dr. Del Valle is 27 biased, noting that Dr. David Weidman considered her IPC report to be a "very fair assessment." (Doc 38-4, AR 462.) The Court does not consider Dr. David Weidman's 28 statement with respect to the merits of Demer's disability claim, but rather, as evidence to rebut Plaintiff's contention that Dr. Del Valle operates under a conflict of interest. See 25 23 1 disagrees. Dr. Del Valle found that the medical information supported functional limitations 2 beyond 6/18/10 due to “severe degenerative disc disease, degenerative vertebral disease with 3 numerous levels of the cervical, thoracic, and lumbar spine associated with neural foraminal 4 narrowing as well as spinal stenosis.” Based on this diagnosis, Dr. Del Valle concluded that 5 Dr. David Weidman’s opinion as to Plaintiff’s functional capacity was the opinion best 6 supported by the medical evidence despite the fact that it was dated 4/20/09. Dr. Del Valle 7 also submitted an addendum to her report after reviewing new medical information and 8 objections to her report submitted by Dr. Osborne. She found that the cervical MRI 9 conducted 6/21/10 showed “some minor progression” of Demer’s condition when compared 10 to the 6/22/09 MRI, but not so drastic as to support a finding of disabled within the meaning 11 of the Plan. Dr. Del Valle found that no study provided for her review indicated “any 12 particular change in his lumbar spine condition since August 2008.” Dr. Del Valle concluded 13 that Demer was able to perform his duties at IBM in August of 2008, and his functional 14 capacities had not deteriorated to the extent that he would be physically incapable of working 15 at the time of her review. Dr. Del Valle considered all the treating physicians’s opinions. 16 She did not scan the record and cherry pick evidence that was probative of denying Demer’s 17 disability claim. Moreover, Dr. David Weidman considered Dr. Del Valle’s IPC report to 18 be a “very fair assessment.” 19 2. 20 Plaintiff also asserts that MetLife relied on the biased opinion of Dr. Gordan to deny 21 Demer’s appeal. Specifically, Plaintiff contends that Dr. Gordan failed to diagnose Demer 22 with radiculopathy and acknowledge the side effects of Demer’s medications, which was Dr. Gordan’s opinion 23 24 25 26 27 28 Abatie, 458 F.3d at 970 ("The district court may, in its discretion, consider evidence outside the administrative record to decide the nature, extent, and effect on the decision-making process of any conflict of interest.") 24 1 contrary to the medical evidence.7 The Court finds that Dr. Gordan’s conclusions were not 2 the result of bias. 3 Dr. Gordan did not diagnose Demer with radiculopathy, although it was diagnosed by 4 Dr. Osborne, Dr. Debra Weidman, Dr. Moore, Dr. Baron, and Dr. Del Valle. The Court, 5 however, does not conclude that this demonstrates that Dr. Gordan issued a biased opinion. 6 Dr. Gordan spoke with a supervisor from the neurophysiology lab where the SSPE was 7 conducted and received information that a nerve conduction test had also been done when 8 the evoked potentials were performed which could indicate peripheral neuropathy, 9 radiculopathy, or some cord lesion. Dr. Foote, who conducted the EMG on 2/21/11, 10 determined that Demer had an Allman Neuropathy and stated there was a question of lumbar 11 radiculopathy on another EMG. Dr. David Weidman conducted an EMG on July 21, 2009 12 of Demer’s upper extremities and found that “[t]he study was normal without evidence of 13 upper cervical radiculopathy on the left. There was no EMG submitted of the lower 14 extremities or reference to one.” In sum, Dr. Gordan’s medical opinion differs from several 15 of the treating and reviewing physicians, but the objective medical tests spawned various 16 diagnoses and created room for disagreement. Dr. Gordan attempted to speak with Dr. 17 Osborne concerning his contrary diagnosis but Dr. Osborne declined. Plaintiff’s reviewing 18 physician denied Dr. Gordan an opportunity to potentially revise his diagnosis. Nevertheless, 19 Dr. Gordan did diagnose Demer with DDD, slowed nerve conduction, chronic pain, and 20 headaches. However, similar to Dr. Del Valle, he found that these diagnoses did not render 21 Demer disabled. 22 23 24 25 26 27 28 7 Plaintiff disputes Dr. Gordan's independence from MetLife. (PSOF ¶ 23.) In calendar years 2009 and 2010, Dr. Gordan earned from MetLife $182,137.50 and $212,775.00, respectively. From January 11th to May 11th, he earned $61,275.00. (Id.) Plaintiff also asserts that Dr. Gordan is the same Dr. Gordon from Mohamed v. MetLife, 2012 WL 315868 (S.D.N.Y. decided February 2, 2012). (Doc 29-2, Exh. 8, Affidavit of Plaintiff's counsel, Barry Kirschner.) Defendants dispute that the doctor in that case is the same Dr. Dennis Gordan here. Defendants further contend that the affidavit relies on double hearsay, and therefore must be stricken. The court has read Mohamed, and finds that regardless of the hearsay issue, Dr. Gordan's determinations in that matter are minimally probative, if at all, of his opinion in this matter, especially in light of the volume of work he does for MetLife. 25 1 MetLife also asked Dr. Gordan if there was any “clinical evidence” to support 2 restrictions and limitations resulting from Demer’s medication. Plaintiff cites as evidence 3 of bias Dr. Gordan’s answer: “There is no specific information about medications taken or 4 effects from them during the period in question. Although Dr. Osborne asserted that the 5 claimant’s needed narcotic medication caused cognitive side effects, there was never any 6 evidence of that.” Dr. Gordan detailed Demer’s history of prescribed and non-prescribed 7 medications, which included powerful pain narcotics. He admitted that Demer suffers from 8 multiple areas of pain with documented anatomical cervical stenosis, DDD, delayed nerve 9 conduction, headaches, and arthritis. He did not find specific information to support 10 cognitive side effects from Demer’s medications. Plaintiff asserts that the opinions of Drs. 11 Osborne and Moore and Demer’s written statement undermined Dr. Gordan’s opinion. Dr. 12 Osborne noted that side-effects to be expected from Demer’s medications were narcotic 13 related fatigue and decreased ability to concentrate. (Doc 39-3, AR 722-23.) Dr. Moore 14 stated that Demer had “cognitive limitations,” but he did not explain what the limitations 15 were or the cause. (Doc. 37-2, AR 926.) Demer’s personal statement submitted to MetLife 16 provided that his medications caused him fatigue and affected his concentration. (Doc. 39-3, 17 AR 729.) However, Demer’s treating physicians - Drs. Moore, Debra Weidman, and David 18 Weidman - consistently described him as alert, oriented, and appropriately responsive. Dr. 19 Gordan’s answer was supported by the medical evidence. 20 3. 21 MetLife requested Dr. Goldman review Demer’s mental heath issues, including the 22 side effects of his medication. (Doc. 34, p. 26.) As to Dr. Goldman, Plaintiff contends that 23 he failed to consider the opinions of Drs. Moore and Osborne as to Demer’s cognitive 24 limitations and ignored the statements made by Demer and lay witnesses who observed 25 Demer’s condition worsen. Plaintiff similarly challenges the objectivity of Dr. Goldman’s 26 opinion and MetLife’s reliance upon it. To establish Dr. Goldman’s bias, Plaintiff primarily 27 relies on Dr. Moore’s note that Demer “has cognitive limitations [due to] pain as well as 28 analgesics,” and Dr. Osborne’s letters dated February 14, 2011 and February 17, 2011, Dr. Goldman’s opinion 26 1 wherein he describes, in general, the side effects expected from the medications Plaintiff had 2 been prescribed. 3 In each of his examinations with Dr. Moore and Dr. Debra Weidman, Demer was 4 described as alert, conversant and oriented x3. Dr. David Weidman and Dr. Moore both 5 noted that Demer wanted to become a teacher. 6 encouraged Demer to seek a more holistic approach to pain relief including yoga. Dr. 7 Goldman found that there were no objective findings that Plaintiff acted “obtruded, lethargic 8 or with altered sensorium or intoxicat[ed]. At no time was there any data to support 9 significant cognitive dysfunction in any quantified or otherwise objective fashion.” Dr. 10 Goldman reviewed the 400 page record, noted the lack of objective evidence, and determined 11 that the evidence provided was insufficient to support a cognitive impairment that would 12 render Demer disabled. It was plaintiff’s burden to provide MetLife with evidence of 13 cognitive dysfunction. See Morales-Alejandro v. Medical Card System, Inc., 486 F.3d 693, 14 700 (1st Cir. 2007) (“A claimant seeking disability benefits bears the burden of providing 15 evidence that he is disabled within the plan’s definition”). The lack of medical evidence to 16 support a cognitive disability is not evidence of Dr. Goldman’s bias. Dr. David Weidman, in particular, 17 Plaintiff also asserts that his statements as well as lay persons’ observations were not 18 taken into consideration by Dr. Goldman. The Court finds that there is no evidence that 19 affirmatively states whether Dr. Goldman considered the statements.8 However, the Court 20 notes that MetLife denial letter states, “we have reviewed Mr. Demer’s entire claim.” Dr. 21 Goldman also stated he conducted a “page-by-page review of this 400-page record.” 22 23 24 25 8 Plaintiff cites Rekstad v. U.S. Bancorp, 451 F.3d 1114, 1120-21 (10th Cir. 2006), for the proposition that an administrator acts arbitrarily by dismissing statements made by 26 lay people closely associated with the claimant. In that case, two of claimant’s relatives filed affidavits detailing claimant’s cognitive and physical impairments. The 27 administrator stated that the affidavits “were not considered in making our determination.” The court found that the administrator acted in an arbitrary manner by 28 failing to give full and fair consideration to the affidavits. Id. at 1121. Here, MetLife made no such concession. 27 1 C. 2 The Plan provides that Plaintiff is entitled to LTD benefits if “because of a sickness 3 or injury, [he] cannot perform the important duties of any other gainful occupation for which 4 [he is] reasonably fit by [his] education, training, or experience.” MetLife concluded that 5 Plaintiff did not meet this standard because “the medical information in totality does not 6 support any physical or psychiatric restrictions or limitations that would have precluded Mr. 7 Demer from performing any occupation beyond October 29, 2010. . .” MetLife’s denial of 8 Plaintiff’s LTD benefits is supported by the record and therefore constitutes a reasonable 9 determination. MetLife’s decision was supported by the record 10 Dr. Debra Weidman examined Demer on five occasions from August 25, 2009 to 11 January 26, 2010, and in each physical exam, she noted that he was “alert, conversant and 12 oriented x3.” Demer received his first lumbar epidural steroid injection from Dr. Debra 13 Weidman on September 15, 2009 and stated that his lower back and leg pain “definitely 14 responded” to the epidural steroid injection. On January 26, 2010, Dr. Debra Weidman 15 conducted a second lumbar epidural steroid injection, and she noted that “[w]e had 16 performed 1 injection back in September and it really had not bothered him until just 17 recently. It had not been perfect, but definitely under control.” 18 Dr. David Weidman examined Plaintiff on September 21, 2009 and noted that he 19 could get into and up from a squat quite well and he had a strong back. Dr. David Weidman 20 recommended that Plaintiff practice yoga exercises and noted that he “was staying active . 21 . . which is great.” In an Attending Physician Statement, Dr. David Weidman opined that 22 Plaintiff could sit intermittently for four to five hours per day, stand intermittently for one 23 to two hours per day, and walk six to seven hours intermittently per day; he could 24 occasionally lift up to ten pounds, but no more; he could reach above shoulder level and 25 operate a vehicle, but he could not climb, twist, bend and stoop; and he could repetitively 26 perform fine finger movement and eye/hand movements, but he could not repetitively push 27 and pull. In addition, Plaintiff’s treating psychiatrist, Dr. Garland, opined that Demer could 28 possibly return to work in August of 2010. 28 1 The findings most favorable to Plaintiff’s disability claim were made by Dr. Moore 2 and Dr. Osborne. Dr. Moore, however, noted in each visit that Plaintiff was “alert, oriented, 3 and [an] appropriately responsive man, in NAD [no acute distress].” Dr. Moore also noted 4 that Plaintiff wanted to start teaching. On March 22, 2010, Dr. Moore examined Demer and 5 prepared an Attending Physician Statement, concluding that Plaintiff could work zero hours 6 per day because “chronic pain prevents sitting or standing longer than 30 min[utes] without 7 moving. [Patient] has cognitive limitations [due to] pain as well as analgesics.” Dr. Osborne 8 found that Plaintiff could never lift any weight up to ten pounds; he could not reach above 9 shoulder level, operate a vehicle, twist, bend or stoop. Thus, Dr. Osborne concluded that 10 Plaintiff had a “total disability.” Dr. Osborne’s opinion that Plaintiff could not operate a 11 vehicle was directly contradicted by Plaintiff’s conversations with MetLife on January 14, 12 2010 and May 18, 2010, where he stated that he had been driving a vehicle. Further, while 13 receiving disability payments, Demer told a MetLife claims representative that “he was just 14 completing online courses.” Thus, he worked and focused on course material while he was 15 disabled.9 16 Dr. Del Valle reviewed Demer’s medical record. She noted inconsistencies between 17 the opinions of Drs. Osborne and Moore, and rejected both of their assessments of Plaintiff’s 18 functionality, stating, “[t]here is no evidence of a level of impairment to this extreme. This 19 20 21 22 23 24 25 26 27 28 9 In addition, Defendants assert that Dr. Osborne is not an impartial medical examiner as evidenced by his website, which refers to “greedy lawyers, malicious insurance companies, potential financial ruin, total chaos and corruption within the legal system.” (DSOF ¶ 97; Doc 35-1, Exhibit C.) Demer objects to DSOF ¶ 97, contending that this information was not timely disclosed, and therefore should not be considered. (PRDSOF ¶ 97.) As an appeal from an administrative record, this case is exempt from disclosure requirements. See Fed. R. Civ. P. 26(a)(1)(B)(i). Plaintiff also asserts that the information is unfairly presented and does an injustice to Dr. Osborne. (PRDSOF ¶ 97.) This information was provided on a website that was endorsed by Dr. Osborne and created to raise funds for his legal defense in an unrelated matter. Plaintiff does not challenge the authenticity of the website. Because the accuracy and reliability of the website can be readily determined, the Court will take judicial notice of its contents. See Fed. R. Evid. 201(b)(2); see also Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965-66 (C.D. Cal. 2005) (taking judicial notice of a page from the website of the American Academy of Allergy Asthma & Immunology for the purpose of evaluating a "conflict of interest" in an ERISA disability case). However, Dr. Osborne’s alleged bias is not dispositive of this case. 29 1 would indicate that the claimant is bedridden for more than 20 hours a day.” Dr. Del Valle 2 found that the medical evidence supported Dr. David Weidman’s functionality findings. She 3 opined that Plaintiff could work under appropriate restrictions and limitations. Dr. Del 4 Valle’s opinion changed only slightly after reviewing Dr. Osborne’s new findings because 5 the 7/16/10 MRI did not show a significant change compared to the 6/22/09 MRI. 6 Plaintiff incorrectly contends that Dr. Del Valle relied on Dr. David Weidman’s 7 “stale” findings.10 8 determination that Plaintiff was completely disabled and reviewed the test results ordered by 9 Dr. Osborne in 2010. Taking into consideration all the medical evidence, Dr. Del Valle 10 opined that Dr. David Weidman’s functional assessment of Plaintiff - not the evidence he 11 relied on at the time he wrote his Attending Physician Statement - was most clearly supported 12 by the entire medical record. The Court finds that Dr. Del Valle’s opinion was grounded in 13 the medical evidence and MetLife acted reasonably in relying on her review. Dr. Del Valle clearly explained why she rejected Dr. Osborne’s 14 Plaintiff also asserts that Dr. Del Valle agreed with most of the treating physicians 15 diagnoses, but her subjective determination as to his functional capacity was at odds with her 16 diagnosis. Plaintiff argues that MetLife should have ordered a functional capacity evaluation 17 or paid for their IPCs to personally examine Demer to eliminate the subjectivity of their 18 IPCs’ determinations. MetLife, however, was not required to do so. The terms of the Plan 19 require Plaintiff to provide proof showing that Plaintiff has satisfied the conditions and 20 requirements for any benefit; “Proof must be provided at claimant’s expense.” Doc. 36-1, 21 AR 24; see also Morales-Alejandro, 486 F.3d at 700 (1st Cir. 2007) (it is claimant’s burden 22 to prove that he is disabled within the plan’s definition). 23 The Court next considers the factual findings made by MetLife on the administrative 24 appeal. MetLife retained the services of Dr. Goldman and Dr. Gordan to review Plaintiff’s 25 26 10 Plaintiff contends throughout his Reply (Doc. 41) that MetLife should have accorded more weight to the treating physicians rather than its IPCs. This argument is completely without merit. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 28 825 (2003) (holding that “plan administrators are not obliged to accord special deference to the opinions of treating physicians.”) 27 30 1 psychiatric and physiological conditions. Dr. Goldman conducted a “page by page” review 2 of Plaintiff’s medical file and noted preliminarily that Plaintiff has not been seen “with a 3 frequency or intensity that would be deemed appropriate for the level of afunctionality 4 reported by the claimant’s providers.” He concluded that “[g]iven the lack of recent data and 5 the paucity of any compelling objective findings, as well as the lack of serial mental status 6 examinations, this reviewer would be unable to establish the presence of an impairing mental 7 condition.” Dr. Goldman considered all the information in the file and found it insufficient 8 to make a finding of mentally disabled.11 9 With regard to Plaintiff’s physical limitations, Dr. Gordan prepared an eighteen-page 10 report. Dr. Gordan concluded that Plaintiff “likely has a modicum of discomfort from muscle 11 contraction headache, neck and back pain related to spinal degeneration, and referred pain 12 down the limbs from those degenerative changes.” Similar to Dr. Del Valle, Dr. Gordan 13 opined that, although Plaintiff was surely in pain, he was capable of functioning under 14 appropriate restrictions and limitations. MetLife reasonably relied on these findings. 15 In sum, the record taken as a whole establishes that MetLife reasonably relied on its 16 IPCs’ reports. Every doctor agreed that Plaintiff suffered from a combination of depression 17 and chronic pain syndrome, but every doctor also had a different opinion as to Plaintiff’s 18 future functionality. MetLife was required to choose between divergent opinions. MetLife’s 19 decision to rely on its IPCs’ findings was reasonable. 20 CONCLUSION 21 Because MetLife has taken affirmative steps to ameliorate its structural conflict of 22 interest, the IPCs did not abandon their roles to objectively review the medical evidence, and 23 24 25 26 27 28 11 The parties argue extensively over the scope of Dr. Goldman’s response: “[b]eyond October 29, 2010, there clearly are no objective or other compelling or convincing data to establish functional impairment as a result of Mr. Demer’s psychotropic medications.” (Doc. 39-2, AR 668.) (Emphasis added.) Dr. Goldman appears to have qualified his answer as to mood-altering drugs (psychotropic), however, Dr. Goldman also opined that he was “unable to establish the presence of an impairing mental condition.” Therefore, the Court finds that MetLife’s determination that the medical evidence in totality does not support psychiatric limitations that would prevent Plaintiff from performing any occupation beyond October 29, 2010 was reasonable. 31 1 the record as a whole supports the denial of benefits, the Court concludes that MetLife’s 2 determination was not affected by its structural conflict of interest and that MetLife operated 3 within its discretion in denying Demer’s claim. 4 Accordingly, IT IS ORDERED as follows: 5 1. Plaintiff’s Motion for Summary Judgment (Doc. 28) is DENIED. 6 2. Defendants’ Cross-Motion for Summary Judgment (Doc. 34) is GRANTED. 7 3. The Clerk of the Court shall enter judgment in favor of Defendants and close its 8 9 file in this matter. DATED this 30th day of September, 2013. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32
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