Scott K. Meyer v. UNUM Life Insurance Company of America et al, No. 8:2019cv01725 - Document 48 (C.D. Cal. 2021)

Court Description: FINDINGS OF FACT AND CONCLUSIONS OF LAW Re: Cross Motions for Judgment (Docs. 32 , 33 ); ORDER GRANTING Request for Judicial Notice by Judge Josephine L. Staton. (Made JS-6. Case Terminated.) (See document for further information). (jp)

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Scott K. Meyer v. UNUM Life Insurance Company of America et al Doc. 48 1 2 3 4 JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SCOTT K. MEYER, Plaintiff, 12 13 14 15 16 Case No. 8:19-cv-01725 JLS (ADS) v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant. FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: CROSS MOTIONS FOR JUDGMENT (Docs. 32-33) ORDER GRANTING REQUEST FOR JUDICIAL NOTICE 17 18 19 20 21 22 23 24 25 26 27 28 Dockets.Justia.com This action arises out of Plaintiff Scott K. Meyer’s claim for benefits under a 1 2 policy for long-term disability insurance issued by Unum Life Insurance Company of 3 America (“Unum”). Plaintiff’s claim was originally based on certain physical and 4 cognitive ailments that he contends arose due to a motor vehicle accident. Unum 5 approved Plaintiff’s claim to the extent it was based on the (since resolved) physical 6 ailments, but did not approve Plaintiff’s claim based on reports of his cognitive 7 dysfunction, which he contends arose because he suffered a concussion in the 8 accident. After paying long-term disability (“LTD”) benefits for a period of 9 approximately 12 months, Unum terminated Plaintiff’s benefits. As part of the claims 10 process, Plaintiff administratively appealed the termination, but the termination was 11 upheld by Unum. Thereafter, Plaintiff filed the present claim for benefits pursuant to 12 the Employee Retirement and Income Security Act (“ERISA”), 29 U.S.C. 13 § 1132(a)(1)(B). The focus of the present action is whether Plaintiff has shown he 14 was disabled during the relevant time period, under the relevant policy provisions, as a 15 result of cognitive dysfunction. The parties have filed Opening and Responsive Trial Briefs. (See Docs. 32-33, 16 17 35-36.) The Court considered has considered the parties’ arguments presented 18 therein, their arguments made at the proceeding on February 23, 2021, the 19 Administrative Record (“AR”) filed by Defendant Unum Life Insurance Company of 20 America (“Unum”), the extrinsic evidence admitted by the Court on December 21, 21 2020, and the evidence that is the subject of Plaintiff’s request for judicial notice. 22 (See Docs. 31 (sealed), 35-1, 46-47.) Pursuant to Federal Rule of Civil Procedure 52(a), the Court makes the findings 23 24 of fact and conclusions of law set forth below.1 The Court reviews de novo Unum’s 25 decision to terminate LTD benefits. (See Docs. 24-25.) As set forth more fully 26 below, the Court concludes that Plaintiff remained eligible for LTD benefits when 27 1 28 To the extent any findings of fact are included in the Conclusions of Law section, they shall be deemed findings of fact. To the extent any conclusions of law are included in the Findings of Fact section, they shall be deemed conclusions of law. 1 1 those benefits were terminated effective October 6, 2018. 2 I. EVIDENCE OF RECORD 3 The evidence before the Court may be summarized as follows. 4 A. 5 Plaintiff was employed by McDermott & Bull Executive Search as an executive Long-Term Disability Policy 6 recruiter.2 (57.)3 As a result of his employment, he was insured under a group LTD 7 insurance policy. (See 2441-2483.) The Policy provides for LTD benefits to age 65, 8 with a maximum monthly LTD benefit of 60% of the employee’s monthly pre- 9 disability earnings for the calendar year prior to the onset of disability, minus 10 applicable offsets. (2446, 2457, 2460.) Plaintiff’s monthly income was $13,154.85 11 per month, and 60% of that amount is $7,892.91. (865.) Relevant to the first 24 12 months of disability, the Policy defines “disabled” in the following manner: You are disabled when Unum determines that: 13 14 - you are limited from performing the material and substantial 15 duties of your regular occupation due to your sickness or injury; and - you have a 20% or more loss in your indexed monthly earnings 16 due to the same sickness or injury. 17 18 (2456 (emphasis omitted).) “Regular occupation” is defined as “the occupation you 19 are routinely performing when your disability begins . . . as it is normally performed 20 in the national economy.” (2473.) “Material and substantial duties” are defined as 21 those “duties that . . . are normally required for the performance of your regular 22 occupation . . . and cannot be reasonably omitted or modified.” (2471.) “Sickness” 23 means “illness or disease.” (2473.) “Injury” is defined as “a bodily injury that is the 24 direct result of an accident and not related to any other cause.” (2471.) “Disability” 25 26 27 28 2 Plaintiff’s regular occupation may be described generically as an executive recruiter, but his actual job title was “Principal Consultant.” (See, e.g., 1381.) Below, the Court makes specific factual findings regarding Plaintiff’s regular occupation. 3 All citations identifying only a page number are citations to the Administrative Record. (See Doc. 31.) 2 1 due to either “sickness” or “injury” must begin while the insured is covered under the 2 policy. (2471.) 3 After the first 24 months, the relevant definition of “disabled” changes: 4 After 24 months of payments, you are disabled when Unum determines 5 that due to the same sickness or injury, you are unable to perform the 6 duties of any gainful occupation for which you are reasonably fitted by 7 education, training or experience. 8 (2456 (emphasis omitted).) Under the Policy, Unum paid LTD benefits to Plaintiff beginning October 13, 9 10 2017, but it terminated those benefits effective October 6, 2018. (814, 1246-47.) 11 B. Plaintiff’s “Regular Occupation” 12 Plaintiff’s “regular occupation” as an executive recruiter is described by the 13 vocational consultant engaged by Plaintiff’s counsel to assist in Plaintiff’s appeal of 14 Unum’s termination of his benefits. (1370-99.) Charles Galarraga, M.S., CRC, 15 LCPC,4 described Plaintiff’s occupation: 16 Mr. Meyer’s occupation of Principal Consultant requires strong 17 communication skills including the ability to interact intelligently and 18 meaningfully with high level executives, the ability to express himself 19 articulately and to attend to details expressed in meetings, to conduct 20 research and to make abstract analyses, to adhere to deadlines, to manage 21 time effectively, to plan and organize aspects of his business, to 22 effectively multi-task among meetings and clients, and to attend to and 23 retain new information over time. 24 (1371.) Galarraga analyzed Plaintiff’s work history and identified three job 25 classifications in the Directory of Occupational Titles (“DOT”) as representative of 26 Plaintiff’s regular occupation: Personnel Recruiter, Consultant, and Manager of an 27 4 28 Galarraga is a Vocational Rehabilitation Counselor. (1397.) He holds master’s degrees in psychosocial rehabilitation and mental health counseling. He is a certified rehabilitation counselor (“CRC”) and a licensed psychotherapist. 3 1 Advertising Agency. (1381.) Unum requested that Senior Vocational Rehabilitation Consultant, Kelly B. 2 3 Marisano, M.Ed., CRC, review Galarraga’s report.5 (See 2397-2400.) Marisano 4 criticized Galarraga’s combination of these three job classifications, but she conceded 5 that his choice of the classification of Personnel Recruiter was “most consistent with” 6 Plaintiff’s regular occupation, and she conceded that another Unum vocational review 7 identified that the most relevant DOT classification was “Consultant.” (2398.) 8 Marisano acknowledged the duties of Executive Recruiter as follows: Reviews employment applications and evaluates work history, 9 10 education and training, job skills, compensation needs, and other 11 qualifications of applicants. Records additional knowledge, skills, 12 abilities, interests, test results, and other data pertinent to selection and 13 referral of applicants. Reviews job orders and match applicants with job 14 requirements, utilizing manual or computerized file search. Informs 15 applicants of job duties and responsibilities, compensation and benefits, 16 work schedule and working conditions, organization and union policies, 17 promotional opportunities, and other related information. Refers selected 18 applicants to person placing job order, according to policy of 19 organization. Keeps records of applicants not selected for employment. 20 May perform reference and background checks on applicants. May refer 21 applicants to vocational counseling services. May conduct or arrange for 22 skills, intelligence, or psychological testing of applicants. May evaluate 23 selection and placement techniques by conducting research or follow-up 24 activities and conferring with management and supervisory personnel. 25 May contact employers in writing, in person, or by telephone to solicit 26 orders for job vacancies for clientele or for specified applicants and 27 28 5 Like Galarraga, Marisano is a certified rehabilitation counselor. She also holds a master’s degree in education. (2399.) 4 1 record information about job openings on job order forms to describe 2 duties, hiring requirements, and related data. 3 (2399.) C. 4 5 2004 Dating back to as early as 2004, Plaintiff had been treated medically for depression. (See 1403.)6 6 7 Pre-Accident Medical Treatment 02/23/2017 In an ADD screening test, Plaintiff indicated that the events that “very 8 much describe[ him]” and which constitute “continuing problem[s]” for 9 him were: “Has difficulty getting and staying organized.” “Forgetful. 10 Misplaces items sometimes resulting in a frantic search.” “Forgets tasks, 11 why [he] walked into a room, or what [he] was about to say.” “Has 12 problems with time management.” “Has trouble prioritizing.” “Worries 13 and obsesses.” (2163-73.) He indicated that his “[m]ain problems 14 [include] . . . forgetfulness[, and] organizational skills/time 15 management.” (2174.) 16 02/23/2017 Dr. David E. Sosin, noted that “Pt [patient] is clearly ADD.” in his office 17 note. (2122.) The prescription medicine Adderall improved this 18 condition at some point after his initial visit with Dr. Sosin. (See 1403.) D. 19 20 Post-Accident Medical Treatment 07/14/2017 Plaintiff was involved in a motor vehicle accident. A week after the 21 accident, Plaintiff described the accident as follows: He stopped for a 22 pedestrian in a crosswalk and his car was rear-ended by another vehicle 23 traveling at 25-30 miles per hour. He was wearing his seatbelt but was 24 thrown forward by the impact, and then back into the headrest. He was 25 26 27 28 6 This history is recounted by in the Medical Report of David E. Sosin, a psychiatrist who treated Meyer for Attention Deficit Disorder (“ADD”). (1403-06.) Although an occasional phrase in Dr. Sosin’s office notes can be deciphered, his treatment notes are almost completely illegible. Therefore, throughout this Order, the Court has relied on Dr. Sosin’s summary. (Compare 1403-04 with 2121-33.) 5 1 dazed for a moment and his car was heavily damaged. (382 (Dr. Nanette 2 Mitchell 07/21/2017 office notes).) The same day, Plaintiff’s wife, 3 Barbara Meyer, observed that Plaintiff twice lost his train of thought and 4 “wasn’t making sense.” She took him to an urgent care facility. (1414.) 5 07/14/2021 There, Plaintiff was seen by Dr. Sabrina C. Wilder, M.D., whose same- 6 day assessment of Plaintiff indicated he suffered a “concussion, without 7 LOC [loss of consciousness].” (364-378.) Plaintiff reported feeling 8 disoriented, “scatterbrained,” and losing his train of thought. (368.) Dr. 9 Wilder noted that Plaintiff’s “cervical back” showed a decreased range of 10 motion, tenderness, pain and spasm. (370.) Her neurological assessment 11 revealed Plaintiff was “alert,” with “normal sensation, normal strength, 12 normal reflexes and intact cranial nerves.” (370.) Dr. Wilder observed 13 no “cranial nerve deficit[s] or sensory deficit[s]” and noted that 14 Plaintiff’s “[g]ait [was] normal.” (370.) 15 07/18/2017 Dr. Sosin noted that Plaintiff “felt foggy, not remembering what he was 16 saying by mid-sentence.” (1403.) Dr. Sosin recommended he continue 17 Adderall. (1403.) 18 07/20/2017 Plaintiff went to the Hoag Memorial Hospital emergency room, 19 complaining of “fogginess” and headache, and stating that “he has been 20 losing his train of thought mid-sentence.” Plaintiff stated “he was 21 concerned about the possibility of a brain injury” based on his “persistent 22 symptoms.” (717.) CT scans of Plaintiff’s head and cervical spine were 23 not able to identify any problems. Plaintiff’s primary diagnosis was 24 identified as “[p]ost concussive syndrome.” (720.) 25 07/21/2017 Plaintiff saw his primary care physician, Dr. Mitchell, for a follow up 26 regarding the accident. (379-91.) Dr. Mitchell diagnosed him with neck 27 sprain and post-concussion syndrome. (379.) 28 07/27/2017 Plaintiff followed up with Dr. Mitchell on July 27, 2017 and reported that 6 1 his cognitive problems were impacting his ability to work. (392-97.) 2 “He is having a hard time working. The last few days he has had 3 important meetings where he had to stop midsentence because he 4 couldn’t remember what he was saying and his partner had to intervene.” 5 (393.) Plaintiff also reported some physical issues as a result of the 6 accident. “He is having upper back and neck pain which persists at 3/10 7 and has left hand tingling.” (393.) Dr. Mitchell again noted Plaintiff’s 8 diagnosis as “[p]ost concussion syndrome,” advised him to take a leave 9 of absence from work, and noted he was to see a neurologist that same 10 11 day. (394.) 07/27/2017 Plaintiff saw neurologist Victor Doan, M.D. (709-12.) Once again, 12 Plaintiff described his symptoms of cognitive dysfunction: “Headache is 13 a band like sensation across the forehead and also in the base of the neck 14 3-4/10 intensity. He has mental fogginess, memory difficulties, frequent 15 episodes of losing his train of thought and noticeable fatigue.” (709.) 16 These mental problems were causing Plaintiff problems with his work. 17 “He is very concerned because during a presentation yesterday he 18 blanked out [without loss of consciousness] when speaking because he 19 forgot what to say next, and couldn’t continue and needed his partner [to] 20 help.” (709.) Dr. Doan noted Plaintiff’s “[s]ymptoms are typical of post 21 concussion syndrome.” (710.) Dr. Doan stated that the “vast majority” 22 of cases resolve within 3 months, and Plaintiff “is only 2 weeks from his 23 head injury so his recovery may still be on track.” (710.) 24 25 26 08/08/2017 Dr. Mitchell noted Plaintiff’s reports of “difficulty with focus and expressive aphasia often losing his train of thought.” (401.) 08/09/2017 Plaintiff underwent an Occupational Therapy Assessment. (705-708.) 27 Plaintiff reported to Ms. Amy Salinas that he was continuing to perform 28 poorly at work due to his cognitive issues, such as “‘blanking out’ during 7 1 conversations with his clients.” (706.) Although Plaintiff’s Montréal 2 Cognitive Assessment (“MoCA”)7 showed a “normal” score, Salinas 3 noted that it “may not have the sensitivity to capture the patient’s short- 4 term memory impairments.” Nevertheless, the MoCA showed 5 “decreased detail with visuospatial/executive skills, decreased language 6 skills and decreased ability to recall 5 words to remember after a delay.” 7 (706-07.) 8 08/10/2017 Dr. Sosin noted that Plaintiff’s “[r]ecent memory and recall [were] still 9 affected,” and that Plaintiff “[b]ecomes sleepy after being busy.” (1403.) 10 08/25/2017 Dr. Mitchell noted Plaintiff’s reports of memory problems and losing his 11 train of thought. (408-18.) She stated: “He is trying to work but often 12 blanks out after the concussion. He never did this before the concussion. 13 He had 4 meetings Wednesday and he could not function without his 14 partner. He would lose his train of thought.” (411.) 15 09/28/2017 Dr. Sosin noted that “[b]rain fog continues and was worsened when patient ran out of Adderall.” (1403.) 16 17 11/03/2017 Plaintiff was seen for pain from “injuries secondary to a motor vehicle accident that occurred on July 14, 2017.” (112.) 18 19 11/30/2017 Dr. Mitchell advised Plaintiff to go on disability. (447-54.) She noted: 20 7 21 22 23 24 25 26 27 28 In absence of objection by Unum, the Court takes judicial notice of the MoCA, which is attached Meyer’s Opening Brief. (See Doc. 35-1.) The MoCA requires the patient to complete several simple drawing tasks and written tasks. The first requires the patient to trace a simple connect-thedots line through a series of A-E and 1-5 “dots” in a manner that alternates between letters and numbers: 1-A-2-B-3-C-4-D-5-E. The patient must copy a simple cube drawing, draw a clock face showing the time at ten past eleven o’clock, and identify line drawings of three recognizable animals (each with a distinctive feature: a lion with a mane, a rhinoceros with its horns, and a camel with a hump). The patient is asked to recall five words immediately after being read those words, then is asked to recall them again after five minutes. The patient is asked to recall five one-digit numbers in sequence, and he is asked to recall three one-digit numbers in reverse. The patient must tap in recognition of all “As” in a series of letters read to him, and subtract backwards from 100 by 7s (93, 86, 79, 72, and 65). He must repeat two simple sentences that are read to him, he is asked to identify more than 10 words beginning with the letter “F” in one minute, and he is called upon to demonstrate the ability to understand simple abstract concepts: i.e., that trains and bicycles are both modes of transportation and that watches and rulers both measure things. Finally, the test assesses six points of the patient’s orientation: date, month, year, day, place, and city. 8 1 Scott K Meyer is a 59 year old male who is here for follow up. He 2 is seeing the neurologist and was on Lyrica and had to stop 3 because he had swelling of both feet. His memory is very bad and 4 his hand is still painful despite 3 epidurals. He can’t sleep. He 5 can’t perform in meetings. He has 5/10 pain in his left hand. He 6 needs to go on full time disability which he has at work. (448.) Dr. Mitchell wrote a letter regarding Plaintiff’s disability: 7 8 To Whom it May Concern: Mr. Scott Meyer has been under my 9 care from July 14, 2017 until the present time. He has been unable 10 to earn a living during this time due to a severe post concussion 11 syndrome with headaches, decreased mentation with memory loss 12 and expressive aphasia, cognitive dysfunction, headaches and 13 cervical disc protrusion with severe up to 9/10 left arm and hand 14 pain despite physical therapy. (452.) 15 16 12/13/2017 Plaintiff saw his pain management doctor, who noted Plaintiff rated his headache pain as “2 out of 10.” (92.) 17 18 12/22/2017 Plaintiff saw neurologist Mohsin Shah, M.D., who diagnosed Plaintiff as 19 having concussion and post-concussional syndrome. (96-103.) Dr. Shah 20 performed a “mental status exam” of Plaintiff, describing Plaintiff as 21 “irritable” with a “flat and sad” mood and affect, with “concentration . . . 22 intact.” (98.) 23 24 25 12/22/2017 Plaintiff’s last day of work was December 22, 2017. (57.) E. Plaintiff’s Claim for LTD Benefits and Claim Approval 12/22/2017 Plaintiff submitted a claim for LTD benefits. (57-62.) He identified his 26 disabling medical conditions as post-concussive syndrome and cervical 27 radiculopathy and the date of onset as the date of the accident. (57.) 28 Plaintiff described the accident: 9 1 My car was at a standing stop waiting to turn into a restaurant 2 parking lot, when I was hit from behind . . . at approximately 40 3 mph.[8] I was thrown forward by the impact and thrown backward 4 when my seat belt locked, causing me to hit the back of my head 5 on the headrest in addition to the brain trauma when the seat belt 6 locked. I do not recall losing consciousness, but was disoriented 7 and lost my train of thought when I spoke to my wife, who insisted 8 on taking me to an urgent care center where I was diagnosed by a 9 physician with all of the above. (57.) He described the job duties he was unable to perform as: 10 11 1. Unable to lead executive search assignments, due to short-term 12 memory problems[;] can’t interview and compare/contrast 13 candidates for skills critical to the position; can’t recall major 14 strengths/weaknesses of candidates throughout search process 15 when providing client updates[.] 2. Unable to effectively 16 sell/conduct business development with prospective client 17 companies due to frequent loss of train of thought, brain fog, [and] 18 impaired short-term memory. (57.) 19 20 12/19/17 Dr. Mitchell completed an Unum Attending Physician Statement 21 (“APS”). (72-75.) Dr. Mitchell identified “the primary diagnosis that 22 may impact [her] patient’s functional capacity” as “postconcussion 23 [syndrome] after head trauma,” “expressive aphasia,” “intermittent 24 memory loss,” “severe headaches,” “left hand pain and radiculopathy 25 [from] cervical disc disease.” (72.) Dr. Mitchell identified Plaintiff’s 26 restrictions and limitations (“R&Ls”) as being “unable to keep a train of 27 28 8 The estimates of the speed of the car that rear-ended Meyer range from 25 to 40 mph. Meyer reportedly estimated the car’s speed at 25-35 mph on the day of the accident. 10 1 thought to be effective in interviewing candidate[s] and selling his 2 services to client[s; he] has episodes of confusion [and is] unable to 3 focus[; he has] sleep deprivations due to ongoing cervical neck disc 4 disease with hand pain.” (73.) 5 01/11/2018 While Plaintiff’s claim was pending, he underwent electromyography 6 (“EMG”) testing to determine if his hand pain was due to carpel tunnel 7 syndrome or cervical radiculopathy. (659-60.) The EMG found but no 8 evidence “to suggest a motor cervical radiculopathy.” (660) 9 02/02/2018 In an email to Unum’s claims examiner, Samantha Lee, on behalf of 10 Plaintiff’s employer, clarified Plaintiff’s compensation structure and his 11 performance after the accident. (253-54.) Plaintiff’s compensation was 12 100% performance based, and he was paid when he closed “deals.” (See 13 254 (“Scott is responsible for doing the work to bring in the deals and if 14 he doesn’t bring in deals, he doesn’t get paid.”).) Lee stated that most 15 compensation received by Plaintiff after the accident was for deals closed 16 in the first and second quarter of the year, before the accident. (253.) 17 The remainder was for deals where the work after the accident was 18 performed not by Plaintiff but by a partner with whom he was working. 19 (253.) 20 02/06/2018 Consistent with Plaintiff’s EMG testing, Dr. Mitchell’s office notes 21 indicate, inter alia, that Plaintiff was diagnosed with bilateral carpal 22 tunnel syndrome. (471.) 23 02/21/2018 Dr. Sosin noted that Plaintiff’s “[b]rain fog [is] unchanged.” (1403.) 24 02/26/2018 Several Unum employees discussed Plaintiff’s claim. (587.) They 25 contrasted Plaintiff’s subjective complaints of cognitive dysfunction and 26 expressive aphasia both with his within-normal-limits brain MRI from 27 November 17, 2017, and with several doctors’ notes of Plaintiff’s within- 28 normal-limits cognitive ability, alertness and orientation, and recall. 11 1 (587.) Unum’s claim personnel questioned the lack of “formal cognitive 2 testing,” which they would expect where he reported “his cognitive 3 dysfunction to be so debilitating.” (587.) The team recommended 4 obtaining any available testing results and inquiring further into any 5 treatment plan for the claimed cognitive dysfunction. (587.) 6 03/09/2018 Unum approved Plaintiff’s claim, effective October 13, 2017, based on 7 his carpal tunnel syndrome. (814-21.) Unum stated: “because you are 8 unable to perform work activity that required frequent use of your hands 9 due to your medical condition of carpel tunnel syndrome.” (816.) Unum 10 denied the claim based on Plaintiff’s cognitive dysfunction: “We do not 11 have sufficient information to support your claim for post-concussion 12 syndrome. The brain MRI was unremarkable, and you have had no 13 formal testing to document your claimed memory deficits.” (816.) 14 15 16 04/10/2018 Dr. Sosin noted that Plaintiff was “[s]till unable to work on Adderall 30 mg.” (1403.) 04/11/2018 Plaintiff emailed Unum’s claims examiner. (862-63.) He stated that he 17 was “fairly well recovered from the carpel tunnel surgery on my left 18 hand,” and added that, as a result of the surgery, his left hand pain “has 19 pretty much been eliminated.” (862.) He reported improvement in his 20 ability to sleep well, which he noted “is what every doctor I’ve seen has 21 told me is the most important thing to do to recover from post-concussive 22 syndrome.” (862.) Plaintiff also conveyed that his cognitive function 23 had not improved, and that he was still experiencing “short-term memory 24 loss, losing [his] train of thought frequently every day, ‘brain fog’ and 25 not being able to find the right word when speaking.” (862.) Plaintiff 26 reported that setting up the cognitive testing was “a very slow process.” 27 (862.) He sought additional information regarding whether 28 neuropsychology testing would necessarily include tests related to tactile 12 1 perception and academic ability and achievement, which could 2 dramatically change the cost of the testing, and which might not be 3 covered by his medical insurance. (863.) Moreover, Plaintiff provided a 4 list of twelve areas of neuropsychological testing and asked which 5 categories would be relevant to Unum’s medical review of his claim. 6 (862-63.) 7 04/17/2018 A note from Unum’s file indicates Jana Zimmerman, Ph.D., a 8 psychologist employed by Unum, was asked to opine whether 9 “[n]europsych testing [was] needed.” (890.) Dr. Zimmerman reportedly 10 concluded that “no neuropsych testing is needed at this time,” because 11 Plaintiff was “past the 3 month recovery time for [traumatic brain injury] 12 and no cognitive deficits would be expected.” (890.) She further 13 reportedly opined that “[i]f [Plaintiff’s] providers feel he has cognitive 14 deficits that would affect his ability to work, they could refer him for 15 testing, but we would not recommend any at this time.” (890.) Dr. 16 Zimmerman was influenced by Plaintiff’s April 11, 2018 email to Unum, 17 which she found to “show[] higher-level thinking skills” that were 18 inconsistent “with any type of cognitive deficit.” (890.) 19 05/02/2018 Unum’s claims examiner/Benefits Specialist informed Plaintiff by email 20 that Unum would not need neuropsychological testing for its “on-going 21 claim review,” and that Unum would “just need [his] updated medical 22 records and ongoing work restrictions.” (921.) 23 05/04/2018 Unum sought and obtained a statement from Plaintiff’s employer. (961- 24 63.) In describing changes after the accident, his employer, again 25 through Samantha Lee, explained the following and offered an example 26 27 28 13 1 of how Plaintiff’s performance was found unsatisfactory of one of the 2 firm’s clients: 3 There was a noticeable difference in Scott especially in the speed 4 at which he could communicate ideas and strategy when leading a 5 search. His memory loss interfered with his ability to sell our 6 service in meetings with potential clients and this severely affected 7 not only his practice as he wasn’t able to bring in as much 8 business, but also his partnerships internally with the recruiters, 9 researchers, and Search Consultants he was partnering with on 10 search assignments. . . . [T]he accident severely affected Scott’s 11 job performance. The short-term memory loss affected his ability 12 to effectively sell our services to potential clients. He would often 13 have to bring another Search Consultant with him on those 14 meetings and rely heavily on them to finish his thoughts when he 15 would lose track mid-sentence of his pitch. . . . [A]bout a month 16 after the accident, . . . the client told our CEO that he noticed a 17 difference in Scott and expressed concern about the search moving 18 forward due to the pace slowing down considerably since his 19 accident. This is when our CEO realized that Scott wasn’t just 20 having difficulty with business development, . . . but [also] in 21 actually running search assignments, . . . and spoke to him about 22 LTD. Our CEO took over the search in order to appease our client. (961 (paragraph structure altered).) 23 24 25 F. Medical Treatment After Claim Approval and During Continuing Claims Review 26 05/11/2018 Plaintiff had CTS release surgery on his right hand. (989.) 27 05/11/2018 Dr. Mitchell’s office notes indicate that Plaintiff was “still having 28 difficulty finding words, lack of concentration, lapse of memory 14 1 especially short term. He can’t remember what he is saying while 2 talking.” (1717.) 3 4 5 05/17/2018 Dr. Sosin noted “[n]o improvement in memory. Unaware of passage of time. Perseverates on tasks.” (1403.) 05/18/2018 Dr. Mitchell responded to Unum’s inquiry, indicating that Plaintiff 6 remained disabled due to his cognitive difficulties. (999.) 7 06/19/2018 Plaintiff’s hand surgeon, Dr. Grant Robicheaux, indicated Plaintiff had 8 9 10 the R&L of no prolonged keyboarding for another six weeks. (1029.) 06/21/2018 Dr. Sosin noted that Plaintiff “[r]eports that depression is a new symptom.” (1403.) 11 07/05/2018 Dr. Mitchell’s office notes indicate Plaintiff “has continued cognitive 12 dysfunction with short term memory loss. Episodes of confusion and 13 expressive aphasia, constant headache persists. He has difficulty with 14 time management and understanding of time passage.” (1135.) 15 08/02/2018 After Dr. Robicheaux’s keyboarding restriction expired, Unum sought 16 updated information and claim forms to allow Unum to evaluate whether 17 Plaintiff remained disabled under the terms of the Policy. (1073-1076.) 18 08/06/2018 Unum contacted Plaintiff by telephone to check his recovery after his 19 hand surgery. (1088.) During this call, Plaintiff stated that he believed 20 he was still unable to work due to his cognitive problems. (1088.) 21 08/07/2018 An application for Social Security Disability Insurance (“SSDI”) 22 benefits, was submitted on Plaintiff’s behalf. (1102.) 23 08/29/2018 James Folkening, M.D., an internist hired by Unum, participated in a 24 group discussion concerning Plaintiff’s claim. The team concluded that 25 the R&L’s specified by Dr. Mitchell were inconsistent with Plaintiff’s 26 ability to manage his household finances, drive a car, and author the 27 email referred to above. (1158.) 28 09/04/2018 Dr. Mitchell responded to a letter from Unum, again opining that Plaintiff 15 1 continued to be disabled based on “persistent symptoms of expressive 2 aphasia, headache, loss of memory[, and] post-concussion syndrome.” 3 (1177-78.) 4 09/24/2018 Dr. Folkening conducted a file review. (1227-32.) He concluded that the 5 R&Ls identified by Dr. Mitchell were not supported by the information 6 in the records. (1228.) Dr. Folkening noted the disconnect between the 7 nature of the relatively minor accident and the severe, lengthy 8 impairment reported by Plaintiff: 9 Accounts of the MVA that occurred at the [date of disability] do 10 not suggest that the claimant sustained a serious closed head injury 11 that would characteristically be associated with more severe or 12 protracted cognitive complaints. . . . Airbags did not deploy, and 13 there was no alteration of consciousness, though the claimant 14 reported some temporary feeling of disorientation. Evaluation . . . 15 on the day of the accident revealed no evidence of serious injury. 16 Apart from some tenderness, stiffness, and spasm of paracervical 17 musculature, physical and mental status exam findings were 18 unremarkable. [At the] emergency department evaluation on 19 7/20/17, continuing problems with fatigue, mental fogginess, and 20 loss of train of thought during conversations were described. Once 21 again, excepting some minimal cervical spine tenderness, physical 22 and mental status exam findings were normal. CT of the brain was 23 unremarkable. 24 (1228-29 (paragraph structure altered).) Dr. Folkening summarized his 25 findings and opinions in part, as follows: 26 Over the last fourteen months, the claimant has continued to 27 describe functionally impairing cognitive function, though with no 28 consistent documentation of serious compromise of cognitive 16 1 function by any provider excepting Dr. Mitchell. There has been 2 no arrangement for more formal and comprehensive 3 neurocognitive testing. Most recently dated treatment notes from 4 various providers fail to confirm cognitive deficits precluding 5 claimant performance of full-time sedentary activity as described. 6 (1229.) Dr. Folkening relied on Plaintiff’s MoCA results in concluding 7 Plaintiff suffered from no “major” cognitive impairment. (1229.) Dr. 8 Folkening also addressed Plaintiff’s status post-bilateral CTS surgery: 9 “there is no reason to conclude from most recently dated records that the 10 claimant currently remains impaired from upper extremity pathology or 11 related surgery.” (1230.) Additionally, Dr. Folkening addressed 12 Plaintiff’s complaints of headaches and noted that “no new prescription 13 medication was provided” to treat headaches following the accident, CT 14 examination of the brain and brain MRI (in July and November 2017, 15 respectively) were “unremarkable,” and by December 2017 Plaintiff was 16 reporting the intensity of his headache pain as only “2/10.” (1230.) 17 Dr. Folkening also noted that while Dr. Mitchell’s subsequent records 18 “continue to cite unrelenting severe headaches, [they] do not suggest any 19 additional diagnostics, referrals, or use of prescription medication for 20 relief,” and Plaintiff “has not asserted that headache pain is a significant 21 factor in limiting functionality in most recent months.” (1230.) 22 09/24/2018 Dr. John Coughlin, an internist,9 also reviewed Plaintiff’s file. (1234-37.) He agreed with Dr. Folkening’s conclusion that Dr. Mitchell’s R&Ls 23 24 25 26 27 28 9 Dr. Coughlin is an endocrinologist, but his specialty is not relevant to Meyer’s case. According to the American Medical Association, “[e]ndocrinology is the specialty of medicine that deals with the problems, diseases and medical conditions of the endocrine system.” See https://freida.amaassn.org/specialty/endocrinology-diabetes-and-metabolism-im (last accessed Mar. 10, 2021). Endocrinologists are “internists who concentrates on disorders of the internal (endocrine) glands.” Id. They “typically evaluate, diagnose and treat people with diabetes, thyroid disease, osteoporosis, infertility, and disorders of the pituitary and adrenal glands, as well as diseases that can affect growth, development and metabolism.” Id. 17 1 were not supported. (1236.) Like Dr. Folkening, Dr. Coughlin also 2 noted that “the level of current intervention is inconsistent with the 3 severity of complaints” and the lack of objective testing to support 4 Plaintiff’s subjective complaints. (1236.) Further, Dr. Coughlin found 5 significant that although Dr. Mitchell reported in her office note dated 6 July 5, 2018 that Plaintiff was “seeing the specialist and neurologist” for 7 short-term memory loss, there were no records that corroborated any 8 such contemporaneous evaluation or treatment. (1236.) Dr. Coughlin 9 also relied on Plaintiff’s MoCA test results. (1236.) 10 09/28/2018 Dr. Sosin noted that Plaintiff was “impaired and unable to perform his 11 usual work activities,” despite “some improvement in energy and brain 12 fog.” (1404.) 13 10/05/2018 Unum notified Plaintiff that that it was terminating his LTD benefits. 14 (1246-54.) Unum noted that the accident was not serious; Plaintiff was 15 not seriously injured on the day of the accident and suffered no loss of 16 consciousness; although Plaintiff complained of headaches, no additional 17 treatment was ordered and no medication was prescribed; although 18 Plaintiff complained repeatedly of cognitive dysfunction, no 19 neuropsychological testing was ordered or otherwise undertaken; 20 Plaintiff failed to pursue occupational therapy; and the only objective 21 test, the MoCA, was within normal limits. (1248.) Therefore, Unum 22 concluded that as of October 5, 2018, Plaintiff no longer met the 23 definition of disability under the Policy. (1247.) 24 11/17/2018 As part of Plaintiff’s application for SSDI, Halimah McGee, Ph.D, 25 psychologist, administered three tests to Plaintiff: The Trail-Making 26 Tests (Parts A and B), the Wechsler Adult Intelligence Scale-IV (WAIS- 27 IV), and the Wechsler Memory Scale-IV (WMS-IV). (2324-30.) Dr. 28 McGee reported the test results and concluded that they showed that, 18 1 while Plaintiff could probably perform a job requiring repetitive skills, he 2 could not perform a job requiring higher level functioning: 3 The claimant displays cognitive limitations regarding his ability to 4 work in that he displays mild deficits in attention and concentration 5 on certain types of tests (per Trails A). Although this claimant is 6 capable of learning a routine, repetitive skill, he would probably 7 have difficulty functioning in a regular job setting, if he were 8 required to work under time constraints or multitask. (2329 (paragraph structure altered).) 9 10 12/13/2018 Dr. Sosin noted that Plaintiff still had “problems gauging passage of 11 time,” and was unable to tell whether “a particular activity took place two 12 weeks ago or two months ago.” (1404.) Dr. Sosin reported that prior to 13 the accident, Plaintiff was not prevented by either headaches or ADD 14 from performing his work duties at a high level. (1404.) 15 16 17 G. Plaintiff’s Unsuccessful Appeal of Unum’s Decision to Close the Plaintiff’s Claim Thereafter, Plaintiff (through his attorney) appealed Unum’s claim decision and 18 submitted the additional materials described below. (1291-1418.) 19 03/05/2019 Dr. Jane E. Lewis, Ph.D., psychologist, administered a number of 20 psychological tests and gave a detailed assessment. (1353-68.) From 21 these tests, Dr. Lewis made the conclusion that Plaintiff was disabled 22 from his regular occupation and any similar occupations. (1368.) 23 Significantly, regarding the reliability of the testing and her conclusion 24 drawn therefrom, Dr. Lewis repeatedly noted that Plaintiff passed all 25 symptom validity measures that are built into those tests. (1359 (noting 26 that Plaintiff “appeared to be putting forth his best efforts, which is 27 supported by his passing all symptom validity measures”); 1367 28 (“[T]here is no evidence to indicate that Mr. Meyer was not putting forth 19 1 optimal effort or that he was attempting to exaggerate cognitive 2 functioning deficits.”); 1368 (“Mr. Meyer passed symptom validity 3 measures, thus, showing he was putting forth adequate effort on the 4 testing.”).) Dr. Lewis stated her conclusion regarding disability: 5 Mr. Meyer’s occupation of Principal Consultant requires strong 6 communication skills including the ability to interact intelligently 7 and meaningfully with high level executives, the ability to express 8 himself articulately and to attend to details expressed in meetings, 9 to conduct research and to make abstract analyses, to adhere to 10 deadlines, to manage time effectively, to plan and organize aspects 11 of his business, to effectively multi-task among meetings and 12 clients, and to attend to and retain new information over time. The 13 deficits that have been discussed in this report would make it 14 impossible for Mr. Meyer to be able to perform not only the duties 15 of a Principal Consultant, but also any occupation. Thus, he is 16 disabled at this time as a result of the cognitive functioning 17 deficits. 18 (1638.) As to Plaintiff’s baseline pre-accident cognitive abilities, in 19 addition to relying on Plaintiff’s representations regarding his early 20 academic abilities as represented by SAT and GMAT 94th to 96th 21 percentile scores, Dr. Lewis tested Plaintiff on an area that tends to 22 survive brain injury, word comprehension. (1353, 1361.) Plaintiff 23 scored in the 95th percentile. Dr. Lewis noted: 24 [T]asks comprising the Verbal Comprehension measure tend to 25 remain the most robust in the face of most types of cognitive 26 functioning deficits, such as those sustained in a motor vehicle 27 accident. As a result[,] these tasks tend to be good predictors of 28 premorbid intellect, and, thus, are consistent with this examiner’s 20 1 interpretation of pre-morbid intellect being very high, in the 2 Superior to Very Superior range. 3 4 (1361.) 03/07/2019 Vocational Rehabilitation Counselor Galarraga performed a labor market 5 survey regarding Plaintiff’s occupation and similar occupations. (1370- 6 99.) Based thereon, Galarraga concluded that Plaintiff could not perform 7 the duties of his own occupation or any related occupation. (1395.) 8 Galarraga’s survey included eleven employers within 50 miles of 9 Plaintiff’s address that were questioned regarding employment based on 10 Plaintiff’s stated limitations of slowed processing speeds, short-term 11 attention, issues with memory and inattention, difficulty finding the 12 proper words, and inability to recall newly learned information. (1395.) 13 03/11/2019 Dr. Mitchell wrote a letter again expressing her opinion that Plaintiff was 14 totally disabled and unable to perform his regular occupation due to post- 15 concussion syndrome, short-term memory difficulties, and expressive 16 aphasia. (1401.) Dr. Mitchell noted her role as Plaintiff’s primary care 17 physician since 2010, both before and after the accident, which gave her 18 the ability to analyze Plaintiff’s pre- and post-accident medical records. 19 03/28/2019 Dr. Sosin authored a comprehensive report of his treatment of Plaintiff. 20 (1402-06.) At the time, Dr. Sosin understood Plaintiff’s occupation as 21 “working as a high-level consultant for a firm that placed CEOs and other 22 executives in new positions.” (1402.) His report reviewed his treatment 23 of Plaintiff both before and after the accident. He acknowledged that 24 Plaintiff’s ADD symptoms could overlap somewhat with symptoms of 25 post-concussion syndrome, but also noted that there was “a clear 26 differentiation” between the two in Plaintiff’s case. (1405.) Dr. Sosin 27 remarked that Unum’s claims reviewers assumed, contrary to more 28 current research reviewed by Dr. Sosin, that minor head trauma, without 21 1 loss of consciousness, can cause severe cognitive impairment. (See 2 1404-05 (“[T]he severity of head injury does not necessarily correlate 3 with subsequent cognitive impairment. For instance, there are many 4 cases where a seemingly minor head trauma has produced major 5 cognitive impairment.”).) Therefore, based on his forty years of 6 experience treating patients as a headache specialist, his pre-accident 7 ADD testing of Plaintiff, his treatment of Plaintiff both before and after 8 the accident, a review of relevant medical literature, a review of Dr. 9 McGee’s report, and a review of Dr. Lewis’s report, Dr. Sosin concluded 10 that “Meyer is totally disabled and unable to perform the substantial and 11 material duties of Principal Consultant based on post-concussive 12 syndrome caused by auto accident on 07/14/2017.” (1406.) 13 06/07/2019 Plaintiff’s request for reconsideration of his claim for SSDI benefits was 14 denied by the Social Security Administration (“SSA”). (2032-34.) The 15 SSA explained: 16 You said that you are unable to work because of post concussive 17 syndrome, carpal tunnel syndrome, hypertension, and ADD. The 18 medical evidence shows that you have some limitations caused by 19 your health problems. We realize that your condition prevents you 20 from doing any of your past jobs, but it does not prevent you from 21 doing other jobs, which require less physical effort. Based on your 22 age, 61, education, 16 years, and past work experience, you can do 23 other work. 24 25 (2034.) 06/27/2019 Jacqueline Crawford, M.D., a neurologist, reviewed the file on Unum’s 26 behalf. (2071-74.) She opined that Plaintiff’s symptoms were not 27 consistent with his injury; specifically, she opined that Plaintiff’s 28 reported expressive “‘aphasia’ exceed[ed] in duration and severity what 22 1 would be anticipated in light of the mechanism of injury, normal 2 neurological examinations in July 2017, and normal imaging.” (2072.) 3 On the ultimate question of whether Plaintiff was “limited from . . . 4 influencing people in their opinions, attitudes, and judgments; directing, 5 controlling or planning activities of others; and making judgment and 6 decisions,” Dr. Crawford first “[d]eferred to Dr. Brown” but nevertheless 7 thereafter gave an opinion. (2072-73.) She stated: 8 “Expressive Aphasia” due to traumatic brain injury is not 9 supported as of 10/5/18 and beyond. . . . Neurological deficits are 10 maximal in the hours and days after a brain injury, yet the insured 11 did not demonstrate evidence of aphasia on his examinations 12 during that timeframe: “He is not agitated and not disoriented. He 13 displays no tremor, normal speech and normal reflexes. No cranial 14 nerve deficit or sensory deficit.” (Wilder 07/14/17). “Awake and 15 alert. No aphasia or dysarthria.” (Muir/neuro/Hoag Memorial 16 07/20/17). The insured’s brain imaging by CT and MRI did not 17 reveal evidence of hematoma, cerebral edema, stroke, 18 hydrocephalus, or axonal disruption as might be seen in an 19 individual reporting atypical severe or long-lasting neurological 20 deficits such as aphasia. 21 (2073 (paragraph structure altered).) Dr. Crawford noted the absence of a 22 referral of Plaintiff to a neurologist, as one might expect “if his providers 23 were concerned that Plaintiff suffered from a physical condition causing 24 aphasia.” (2074.) Additionally, Dr. Crawford referred to Plaintiff’s 25 written correspondence of record, “demonstrate[ing] excellent [use of 26 vocabulary, grammar, and spelling in a manner inconsistent with 27 expressive aphasia.” (2074.) Although Dr. Crawford noted the 28 availability of Dr. Lewis’s neuropsychology report and raw test data, she 23 1 2 does not comment on it. (See 2071.) 07/29/2019 William Black, Ph.D., a neuropsychologist, performed a file review 3 Unum. (2350-52.) He was asked by Unum to provide an opinion 4 regarding two questions: “What cognitive function is demonstrated in 5 the neuropsychological testing?” and “What . . . psychological facts are 6 recognized” therein? (2350.) In answering the first question, Dr. Black 7 acknowledged that, as to the test data developed by both Dr. McGee and 8 Dr. Lewis, “the cognitive test data are valid and are an accurate 9 representation of [Plaintiff’s] current cognitive performance.” (2350-51.) 10 Nevertheless, Dr. Black disagreed with Dr. Lewis’s assessment by first 11 questioning her assumptions regarding Plaintiff’s baseline, pre-accident 12 cognitive functioning level. (2351.) Instead, Dr. Black made an 13 assumption “[u]sing standard statistical estimation methods” to estimate 14 that level as “within the High-Average/Superior Range,” which was 15 lower than Dr. Lewis’s estimate of “Superior” to “Very Superior” range. 16 (2351 (Dr. Black); cf. 1361 (Dr. Lewis).) Nevertheless, even with the 17 lowered baseline assumption, Dr. Black still noted that the test results 18 were lower than would be expected. Specifically, he noted that 19 Plaintiff’s “Basic and Active Manipulative Attention are mildly 20 abnormal,” but that “[a]ll other cognitive performance is within the broad 21 range of normal, with greater than expected degrees of variability among 22 the tests/subtests.” (2352.) Dr. Black noted that, as compared with 23 Plaintiff’s “statistically estimated probable premorbid functioning,” 24 Plaintiff’s “scores [were] relatively lower than predicted in many 25 domains, primarily Attention, aspects of Learning and Memory, 26 Processing Speed, and aspects of Executive Functioning.” (2351.) As to 27 the second question, Dr. Black opined that Plaintiff’s psychological tests 28 were valid and the abnormal results related to depression and somatic 24 1 concerns were likely related to an adjustment disorder rather than any 2 disabling condition. (2352.) 3 08/05/2019 The file was then referred to UNUM’s Dr. Peter Brown, a psychiatrist. 4 (2363-65.) Dr. Brown opined that Plaintiff was not precluded from an 5 occupation that required “dealing with people, . . . influencing people in 6 their opinions, attitudes, and judgments; directing, controlling, or 7 planning activities of others; and making judgments and decisions.” 8 (2364.) Dr. Brown relied on Dr. Black’s conclusion that the “[t]esting 9 results indicate, at most, mild impairment.” (2364.) Dr. Brown believed 10 that Plaintiff’s cognitive impairments were due to an exacerbation of his 11 preexisting chronic psychiatric condition, presumably ADD, and that this 12 condition would “benefit from on-going treatment.” (2364.) Although 13 noting that “[i]ndividuals with a long-standing psychiatric condition have 14 a significantly higher risk of having persistent cognitive, affective and 15 somatic symptoms after a comparatively mild head injur[y],” Dr. Brown 16 also opined that “there is no evidence of related current functional 17 impairment that would preclude sustaining full-time occupational 18 capacity.” (2364.) 19 08/28/2019 UNUM denied Plaintiff’s appeal, echoing the rationales set forth in Dr. 20 Black’s and Dr. Brown’s file reviews. (2409-17.) UNUM noted that 21 Plaintiff had mildly abnormal measures of attention, learning, memory, 22 processing speed, and aspects of executive functions, but that “all other 23 cognitive performances fell within the broad range of normal.” (2414.) 24 Unum also pointed out that Plaintiff’s “reported symptoms were . . . 25 inconsistent with the natural progression of a mild head injury.” (2414.) 26 Unum concluded that Plaintiff “was no longer limited from performing, 27 with reasonable continuity, the substantial and material acts necessary to 28 pursue his usual occupation beyond October 5, 2018.” (2414.) 25 1 09/10/2019 Plaintiff filed the present action. 2 09/29/2020 The SSA issued a fully favorable decision, awarding Plaintiff SSDI 3 benefits. (See Doc. 42, Mot. to Admit Extrinsic Evid., Ex. A (“SSA 4 Award”).) The SSA found that Plaintiff “experienced physical and 5 cognitive changes after his accident,” including “problems with memory 6 lapses, word finding difficulty, and lack of concentration.” (Id. at 18.) It 7 determined that Plaintiff retained the “residual functional capacity . . . to 8 [perform] sedentary work that involves simple and repetitive tasks.” (Id. 9 at 19.) The SSA found that Plaintiff was “unable to perform any past 10 relevant work,” including his work as a “personnel recruiter,” specifically 11 finding that “[t]he demands of [Plaintiff’s] past relevant work exceed 12 [his] residual functional capacity.” (Id. at 20.) Therefore, the SSA 13 concluded that Plaintiff had been disabled within the relevant provisions 14 of the Social Security Act beginning December 22, 2017. (Id. at 21.) 15 II. LEGAL STANDARDS 16 A. Federal Rule of Civil Procedure Rule 52 17 This matter is properly before the Court pursuant to Federal Rule of Civil 18 Procedure 52. Rule 52 motions for judgment are “bench trial[s] on the record,” and 19 the Court “make[s] findings of fact under Federal Rule of Civil Procedure 52(a).” 20 Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc). “In a 21 trial on the record, but not on summary judgment, the judge can evaluate the 22 persuasiveness of conflicting testimony and decide which is more likely true.” Id. 23 The parties’ briefs do not reference Rule 52; nevertheless, the Court construes the 24 parties’ briefs as cross-motions for judgment pursuant to Rule 52. (See Doc. 19, 25 Scheduling Order at 1 (“[T]he parties should file cross-motions for judgment pursuant 26 to Federal Rule Civil Procedure 52 on the briefing schedule set forth below.”).) 27 B. Standard of Review 28 The Court has adopted the parties’ stipulation that the decision of the ERISA 26 1 plan administrator to terminate Plaintiff’s LTD benefits is subject to de novo review. 2 (Doc. 24-25.) Under a de novo standard of review, “[t]he court simply proceeds to 3 evaluate whether the plan administrator correctly or incorrectly denied benefits.” 4 Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006). That is, the 5 Court “determines in the first instance if the claimant has adequately established that 6 he or she is disabled under the terms of the plan.” Muniz v. Amec Constr. Mgmt., Inc., 7 623 F.3d 1290, 1295-96 (9th Cir. 2010). 8 C. Burden of Proof 9 Plaintiff bears the burden of establishing by a preponderance of the evidence his 10 entitlement to benefits (i.e., that he was disabled under the terms of the Policy during 11 the relevant claim period). Armani v. Nw. Mut. Life Ins. Co., 840 F.3d 1159, 1163 12 (9th Cir. 2016); Muniz, 623 F.3d at 1294. To do so, Plaintiff must establish that he 13 was more likely than not “disabled” under the terms of the LTD Policy at the time his 14 benefits were terminated. See, e.g., Hart v. Unum Life Ins. Co. of Am., 253 F. Supp. 15 3d 1053, 1074 (N.D. Cal. 2017); Porco v. Prudential Ins. Co. of Am., 682 F. Supp. 2d 16 1057, 1080 (C.D. Cal. 2010). 17 D. Evidence Considered by the Court 18 The Court generally limits its review to “the evidence that was before the plan 19 administrator at the time [the] determination [was made].” Opeta v. Northwest 20 Airlines Pension Plan, 484 F.3d 1211, 1217 (9th Cir. 2007). However, evidence 21 outside the administrative record may be considered in “certain limited 22 circumstances” where additional evidence is necessary to conduct an adequate de 23 novo review of the benefit decision. Id. 24 Here, the Court has already granted the Motion to Admit the September 29, 25 2020 Decision of Administrative Law Judge Paul Coulter, which the Court has 26 considered. (See Docs. 42, 46.) 27 28 Moreover, as set forth supra note 8, in the absence of objection thereto, the Court takes judicial notice of the contents of the MoCA in order to give meaning to 27 1 2 the significance of Plaintiff’s low-normal score on this particular cognitive test. Evidence before the Court need not be admissible under the Federal Rules of 3 Evidence; instead, it “may be considered so long as it is relevant, probative, and bears 4 a satisfactory indicia of reliability.” See Tremain v. Bell Indus., Inc., 196 F.3d 970, 5 978 (9th Cir. 1999). 6 E. 7 A mere diagnosis is not dispositive of the issue of disability. See Matthews v. 8 Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“The mere existence of an impairment is 9 insufficient proof of a disability. . . . A claimant bears the burden of proving that an 10 Analyzing Medical Evidence impairment is disabling”) (internal quotation marks and citation omitted). 11 In performing a de novo review, the Court is not required to accept the 12 conclusion of any particular treatment provider or medical file review. For instance, 13 the Court does not accord special deference to the opinions of treating physicians 14 based on their status as treating physicians. Black & Decker Disability Plan v. Nord, 15 538 U.S. 822, 834 (2003). Instead, medical opinions “must . . . be accorded whatever 16 weight they merit.” Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income 17 Prot. Plan, 349 F.3d 1098, 1109 n.8 (9th Cir. 2003) (citing Nord). 18 The Court may give greater weight to a treating physician’s opinion where it is 19 evident a particular physician has had “a greater opportunity to know and observe the 20 patient than a physician retained by the plan administrator” who conducts a file 21 review. Id. (internal quotation marks omitted). However, where a treating physician 22 lacks expertise in a particular area, and the plan’s retained expert is a specialist in that 23 area, it may be appropriate for a court to give greater weight to the specialist who 24 merely conducts a file review. See Nord, 538 U.S. at 832. 25 Moreover, in cases such as this one, courts have noted an apparent tension 26 between treating physicians, who may tend to favor an opinion of “disabled” in a 27 close case, and physicians who are routinely hired by plan administrators, who may 28 favor a finding of “not disabled” in the same case. See id. It is therefore incumbent 28 1 upon the Court to carefully assess and weigh all the evidence in light of the issues 2 before the Court. 3 III. 4 5 6 FINDINGS OF FACT On the evidence of record summarized above, and in light of the relevant legal standards set forth above, the Court makes the following findings of fact. A. The Material and Substantial Duties of Plaintiff’s Regular Occupation 7 8 Based on vocational consultants Galarraga’s and Marisano’s descriptions of 9 Plaintiff’s regular occupation, the emails from Samantha Lee in response to Unum 10 (253-54, 961-63), and Plaintiff’s own statement (1412-13), the Court finds that the 11 “material and substantial duties” of Plaintiff’s “regular occupation” include the 12 following: 13 Plaintiff’s regular occupation requires near-constant mental focus. It requires 14 attention to detail, the ability to manage time effectively, and the ability to multitask. 15 Plaintiff’s regular occupation also requires several components of higher 16 cognitive functioning, including short- and long-term memory and analytical skills. 17 Plaintiff was routinely required to take in new information about positions and 18 candidates, and to retain and analyze that information to evaluate the candidates’ 19 suitability for open positions. 20 Plaintiff’s regular occupation requires strong communication skills, including 21 the ability to confidently express himself verbally and in writing, to quickly 22 understand and use both language and subtle communication cues to gain and retain 23 the confidence of both the employer-client and executive candidates. 24 Plaintiff’s regular occupation requires that he be capable of developing and 25 maintaining relationships with both sides of a potential match of employer and 26 candidate. 27 28 To perform his regular occupation effectively, Plaintiff needed to combine all these skills to sell his services to parties on both sides of a transaction, thus making a 29 1 successful match between high-level candidates for executive positions and 2 prospective employers looking to find new leaders. To do this, Plaintiff was regularly 3 called upon to influence the opinions, attitudes, and judgments of others. 4 B. Plaintiff Was Able to Perform the Material and Substantial Duties of 5 His Regular Occupation Before the Accident But Not After the 6 Accident 7 Plaintiff performed his regular occupation successfully before the accident, but 8 he was unable to perform his regular occupation successfully after the accident. 9 Plaintiff and his employer—the only two parties in a position to assess this fact— 10 11 agree on this point. Unum’s criticism of the ability of Samantha Lee, McDermott & Bull’s 12 Controller, to speak to this point comes too late. (See Def. Resp. Br. at 16-17.) Unum 13 did not seek additional information from any other source at McDermott & Bull, nor 14 did it otherwise indicate that Plaintiff should provide any additional employer 15 statement. For instance, Lee clearly relays information obtained from McDermott & 16 Bull’s CEO regarding a specific example of Plaintiff’s deficient performance after the 17 accident. (961.) There is no indication that Unum was unwilling to accept Lee’s 18 account at face value, and had the second-hand nature of this example been of concern 19 to Unum, it could have (but did not) seek confirmation from its original source. 20 Moreover, to the extent that Unum’s criticism is based on the lack of foundation 21 (or the hearsay foundation) of Lee’s statements, such criticism is misplaced in a case 22 involving administrative review under ERISA of a decision to deny benefits. Unum 23 no doubt relies on such statements all the time in its claims decisions, and the Court’s 24 role here is to determine whether “the plan administrator correctly or incorrectly 25 denied benefits.” Abatie, 458 F.3d at 963. And before the Court in this proceeding, 26 evidence need not be admissible under the Federal Rules of Evidence, it need only be 27 “relevant, probative, and bear[] a satisfactory indicia of reliability.” Tremain, 196 28 F.3d at 978. Here, Lee’s emails are detailed and clearly based on consultation with 30 1 others within the organization regarding Plaintiff’s post-accident performance versus 2 his pre-accident performance. As such, they are “relevant, probative, and bear[] a 3 satisfactory indicia of reliability.” Id. The Court credits them as the statements of 4 Plaintiff’s employer. 5 In any event, Lee observed first-hand the difference in Plaintiff after his 6 accident. (E.g., 961 (“I used to work closely with Scott as a Researcher on the 7 recruiting team before I moved into my current position as Controller.”); id. (“After 8 the accident, I could tell the difference even when we were talking about simple 9 transactional topics.”).) On this point, the Court gives great weight to Lee’s first-hand 10 11 account of working with Plaintiff before and after the accident. C. The Medical Evidence Establishes Plaintiff is Unable to Perform the 12 Material and Substantial Duties of His Regular Occupation Due to 13 Reported and Measurable Cognitive Deficits 14 The medical evidence establishes that Plaintiff more likely than not continues to 15 suffer from post-accident deficits in the types of cognitive functioning required to 16 perform his regular occupation, that is, it establishes that he is “disabled” within the 17 meaning of the Policy. Plaintiff has established he is disabled through his own 18 subjective accounts (as set forth in his doctors’ notes, his wife’s statement, and his 19 own statement) and through the valid results of objective neuro-psychological testing 20 that are consistent with his subjective accounts of his symptoms. 21 Specifically, as to Plaintiff’s subjective complaints, on the day of the accident, 22 Plaintiff described feeling disoriented, “scatterbrained,” and losing his train of 23 thought. (368.) In her statement, Plaintiff’s wife reported Plaintiff “wasn’t making 24 sense,” leading her to take him to seek treatment at an urgent care center the evening 25 of the accident. (1414.) Four days post-accident he reported feeling “foggy” and “not 26 remembering what he was saying by mid-sentence.” (1403.) A week post-accident, 27 Plaintiff had symptoms severe enough to seek treatment again, this time going the 28 emergency room of a hospital, complaining of persistent “fogginess,” headaches, and 31 1 2 “losing his train of thought mid-sentence.” (717.) Two weeks post-accident, at a second follow-up visit with his primary care 3 physician, Plaintiff reported trouble working, specifically reporting not remembering 4 what he was saying when he was mid-sentence. (393.) The same day, Plaintiff 5 echoed these complaints to neurologist Victor Doan, M.D., who noted Plaintiff’s 6 reports of “mental fogginess, memory difficulties, frequent episodes of losing his train 7 of thought and noticeable fatigue.” (709.) Plaintiff continued to complain regarding 8 lost focus, trouble with work, and losing his train of thought for two months that 9 followed. (See, e.g., 401 (“difficulty with focus and expressive aphasia often losing 10 his train of thought”); 707 (continuing to perform poorly at work due to his cognitive 11 issues; unable to remember the details of a meeting he had just attended); 1403 12 “[r]ecent memory and recall . . . still affected”); 411 (“He had 4 meetings Wednesday 13 and he could not function without his partner. He would lose his train of thought.”); 14 1403 (“[b]rain fog continues and was worsened when patient ran out of Adderall”).) 15 Four months post-accident, Dr. Mitchell wrote that Plaintiff “has been unable to 16 earn a living during this time due to a severe post concussion syndrome with 17 headaches, decreased mentation with memory loss and expressive aphasia, [and] 18 cognitive dysfunction.” (452.) 19 Plaintiff’s subjective complaints continued consistently throughout 2018, after 20 he submitted his LTD claim. (1403 (“[b]rain fog [is] unchanged”; “[s]till unable to 21 work on Adderall 30 mg”; “[n]o improvement in memory”); 1717 (“still having 22 difficulty finding words, lack of concentration, lapse of memory especially short 23 term”); 1135 (“has continued cognitive dysfunction with short term memory loss. 24 Episodes of confusion and expressive aphasia”); 1403 (as of 09/28/2018, “impaired 25 and unable to perform his usual work activities,” despite “some improvement in 26 energy and brain fog”); 2324 (“problems with attention, concentration, and memory”); 27 1404 (“problems gauging passage of time,” and unable to tell whether “a particular 28 activity took place two weeks ago or two months ago”).) Plaintiff’s own undated 32 1 statement, submitted with his appeal on April 1, 2019, details what he means by 2 certain statements, including “brain fog,” loss of train of thought, and short-term 3 memory loss.10 (1291, 1411.) In concluding Plaintiff has established he is “disabled” within the meaning of 4 5 the Policy, the Court gives significant weight to Plaintiff’s subjective accounts of 6 mental “fogginess,” confusion, loss of train of thought, expressive aphasia, and 7 forgetfulness. Significantly, Plaintiff made these complaints on the day of the 8 accident, his wife observed them, and Plaintiff has made those complaints consistently 9 since the accident. Moreover, Plaintiff’s subjective complaints have been confirmed 10 by two separate instances of objective neuropsychological testing. Specifically, the results of Plaintiff’s objective neuro-psychological tests were 11 12 acknowledged as valid (based on built-in validity measures) by all doctors who 13 commented on those tests. Dr. McGee’s testing recognized “mild deficits in attention 14 and concentration” such that although Plaintiff would be “capable of learning a 15 routine, repetitive skill, he would probably have difficulty if required to work under 16 time constraints or to multitask.” (2329.) Dr. Lewis tested Plaintiff as having 17 experienced significant cognitive decline in the areas of auditory attention, visual 18 attention, processing speed, perceptual flexibility, and executive functioning (related 19 to the ability to multitask). (1362-63, 1365-68.) The Court gives great weight to the 20 opinions of Drs. McGee and Lewis. Each of these psychologists interviewed Plaintiff 21 personally and each administered a series of neuropsychological tests that included 22 built-in measures of validity. And both Dr. McGee and Dr. Lewis opined Plaintiff 23 would be unable to perform his regular occupation. The opinions of Drs. McGee and Lewis are consistent with the opinions of 24 25 26 27 28 10 Plaintiff describes “brain fog” as associated with difficulty performing routine tasks, such as becoming disoriented while grocery shopping and being unable to remember where things are located, leading to inefficiencies in routine tasks. (1411.) When Plaintiff describes losing his train of thought, he means “completely blanking out during an active conversation as to what the topic is,” often triggered by being interrupted while speaking. (1411.) He also describes specific examples of short-term memory loss. (1411.) 33 1 Plaintiff’s two treating physicians, Drs. Mitchell and Dr. Sosin. As of March 11, 2 2019, Dr. Mitchell opined that Plaintiff was totally disabled based on her observation, 3 examination, and treatment of Plaintiff and Plaintiff’s symptoms associated diagnoses 4 of post-concussion syndrome, expressive aphasia, and short-term memory loss. 5 (1401.) As of March 28, 2019, Dr. Sosin expressed the same opinion, relying on his 6 observation, examination, and treatment of Plaintiff and Plaintiff’s symptoms 7 associated with his diagnosis of post-concussion syndrome. (1402-06.) The Court 8 gives great weight to the opinions of Drs. Mitchell and Dr. Sosin, not only because 9 these doctors actually examined Plaintiff, but also because they treated him on an 10 ongoing basis, both before and after the accident, and therefore they had had the 11 opportunity to personally observe him and interact with him before and after the 12 accident. The Court finds that Plaintiff’s subjective reports of loss of train of thought, his 13 14 observed and subjectively reported expressive aphasia, together with measured 15 deficits and/or decline in areas of attention, concentration, perceptual flexibility, 16 processing speed, and executive functioning combine to limit Plaintiff from 17 performing many or most of the “material and substantial duties” of his “regular 18 occupation.” For instance, Plaintiff’s regular occupation regularly required him to 19 work on several projects over the same time period, which would be adversely 20 affected by his reduced ability to multitask (as measured by testing of executive 21 functioning). Additionally, difficulties in the area of attention, concentration, and 22 processing speed would impact his ability to absorb and analyze new information. 23 And of particular note, once these impairments became evident, which they quickly 24 did, the ability to influence the opinions, attitudes, and judgments of others in the 25 executive recruitment process would become nearly (if not completely) impossible.11 26 27 28 11 In this regard, the Court notes that Plaintiff was an executive recruiter rather than a recruiter for lower-level positions. By definition, the candidates for executive positions are seeking positions at the highest level of Plaintiffs’ clients’ organizations to further their own already successful careers. Correspondingly, Plaintiff’s employer-clients sought Plaintiff’s assistance in helping them to fill 34 1 Plaintiff’s “regular occupation” requires not only the ability to identify the best 2 candidate for an open executive position, but also the ability to then “sell” the position 3 to the candidate and to “sell” the candidate to the employer. Plaintiff’s measured 4 cognitive deficits limits him from doing this. 5 D. Unum’s File Reviews Do Not Alter the Court’s Findings Regarding 6 Plaintiff’s Ability to Perform the Material and Substantial Duties of 7 His Regular Occupation 8 9 10 Unum’s file reviews, performed by multiple reviewers at two levels, do not convince the Court otherwise. 1. Initial Review (Drs. Zimmerman, Folkening, and Coughlin) 11 Unum’s initial decision to terminate Plaintiff’s LTD benefits in October 2018 12 was based on the file reviews of Drs. Zimmerman, Folkening, and Coughlin. These 13 doctors based their assessments on Plaintiff’s abilities to attend to the cognitive 14 activities of his daily life, his written communications to Unum, his passing score on 15 the MoCA, the lack of formal neuro-psychological testing, and the lack of treatment 16 intervention by his providers. 17 a. Dr. Zimmerman 18 Dr. Zimmerman’s seeming rejection of Plaintiff’s claim for benefits (as noted in 19 the file) based on his cognitive complaints was not warranted. When Dr. Zimmerman 20 reviewed Plaintiff’s email inquiring what type of neuropsychological testing would be 21 required by Unum to review his claim, Dr. Zimmerman appears to conclude that 22 Plaintiff’s claim for benefits based on his cognitive functioning should be rejected 23 based upon his ability to author the email she reviewed. To be sure, Plaintiff’s email 24 (862-63) is thorough, detailed, and well-organized, but from the email itself, there was 25 no way of knowing whether Plaintiff had assistance in drafting it, or how long it took 26 27 28 corporate leadership positions. Thus, Plaintiff’s regular occupation required him make a match that would alter his clients’ organizations at their highest level. Simply put, both the candidates and Plaintiff’s clients have the ability and incentive to closely scrutinize Plaintiff’s work performance, and their confidence in him would be of paramount concern to them. 35 1 him to draft, or whether it required extensive revision before it was sent. (Cf. 863 2 (“Sorry for the lengthy email, but I wanted to make certain I communicated 3 everything with you rather than discuss by phone with the strong possibility that I’d 4 forget something.”).) Unum did not ask; instead, Dr. Zimmerman concluded, based 5 solely on that email itself, that Plaintiff retained “higher-level thinking skills” that 6 were inconsistent “with any type of cognitive deficit.” (890.) Unum’s treatment of the need for neuropsychological testing was inconsistent 7 8 and evidences “hide-the-ball” tactics. Although Dr. Zimmerman appears to have 9 concluded that the written communication skills needed to author that email precluded 10 Plaintiff’s claim based on cognitive complaints, the communication to Plaintiff 11 was that Unum “will not need you to have this testing completed for on-going claim 12 review.” (921.) This was a misleading communication. This communication 13 purports to respond to Plaintiff’s questions about the need for such testing to 14 substantiate his claim, including questions that went so far as to ask Unum to sort 15 among a list of specific testing to identify those areas Unum was most interested in 16 having tested. However, this communication to Plaintiff was a wholly different 17 message than what was conveyed internally. Specifically, while the message among 18 Unum employees12 continued to be that Plaintiff’s written communication was “not 19 consistent with any type of cognitive defect” (890), implying that additional evidence 20 would be needed to substantiate Plaintiff’s claim on this basis, the message to Plaintiff 21 was that, from Unum’s perspective, there was no need for him to pursue any type of 22 objective neuropsychological testing to substantiate his claim. This communication 23 set up Plaintiff’s claim for failure. Indeed, a few months after this communication to Plaintiff that Unum “[would] 24 25 26 27 28 12 (See, e.g., 1158 (notes from Aug. 28, 2018 meeting of two clinicians and two claims personnel, responding to Dr. Mitchell’s identification of Plaintiff’s R&Ls as “unable to function at meetings due to loss of memory, speech limitations, headaches, and medications,” with “the insured is able to manage his household finances and he is able to drive a motor vehicle, he is able to write lengthy emails with higher vocabulary . . . and he is well past the usual recovery time for a concussion with no [loss of consciousness]”).) 36 1 not need [him] to have this testing,” Unum informed Plaintiff that it denied his claim 2 in part based on the fact that no neuropsychological testing was ordered or otherwise 3 undertaken. In fact, Unum stated this basis for denial three times in its denial letter. 4 (See 1248 (“There has been no arrangement for more formal or comprehensive 5 neurocognitive testing.”); 1248 (“Despite your persistent complaints of function 6 limiting cognitive impairment for more than a year, neither you nor your providers 7 (including another neurologist) have suggested or insisted that there be more 8 comprehensive structured evaluation of neurocognitive function.”); 1249 (“[T]here 9 has been no formal assessment of your neuro-cognitive status to support Dr. 10 11 Mitchell’s opinion.”).) The fact that Dr. Zimmerman was noted as observing that Plaintiff’s treating 12 physicians “could refer him for testing” if they believed he had “cognitive deficits that 13 would affect his ability to work” (890) does not salvage Unum’s fractured approach to 14 addressing this issue. Due to the nature of the relationship, as alluded to in Nord, 15 treatment providers do not approach their patients’ subjective complaints with the 16 same skepticism as do their patients’ insurers. Cf. Nord, 538 U.S. at 832 (“[I]f a 17 consultant engaged by a plan may have an ‘incentive’ to make a finding of ‘not 18 disabled’ so a treating physician, in a close case, may favor a finding of ‘disabled.’”). 19 Because Plaintiff’s insurer told him that it “[would] not need [him] to have this testing 20 completed for on-going claim review” (921), and because Plaintiff encountered 21 difficulty in getting his medical insurer to cover such testing, foregoing testing was 22 wholly reasonable. There is no evidence in the record to suggest that such testing was 23 medically necessary in order to treat Plaintiff in an effective manner. And in any 24 event, here, neuropsychological testing eventually confirmed the subjective 25 complaints upon which Plaintiff’s treating physicians relied to treat him. 26 b. Dr. Folkening 27 Turning to Dr. Folkening’s conclusion, it was based in part on the fact that 28 Plaintiff’s complaints had persisted beyond that which might be expected from a 37 1 seemingly minor accident, and the fact that there had been no formal and 2 comprehensive neurocognitive testing. (1228-1230.) Plaintiff’s unremarkable CT 3 scans indeed provide some support for an inference of minor injury but, as discussed 4 below, the Court credits Dr. Sosin’s view (and to an extent, Dr. Brown’s view) that 5 even minor head injuries can lead to significant cognitive deficits, especially in 6 individuals with preexisting psychiatric conditions. And the fact that Plaintiff’s 7 cognition had not been formally tested is as discussed above. Moreover, Dr. Folkening’s reliance on MoCA testing of 26/30 to conclude 8 9 Plaintiff had no “major impairment,” reveals a lack of depth of Dr. Folkening’s 10 understanding of the duties of Plaintiff’s “regular occupation.” (1229.) Although the 11 MoCA, described supra footnote 8, may have great value as a diagnostic tool to 12 screen for obvious cognitive deficits, Plaintiff’s low passing score does not evidence 13 the ability to perform his duties as an executive recruiter. c. 14 Dr. Coughlin The same is true of Dr. Coughlin’s opinion on his file review, which also relied 15 16 on both the normal MoCA score and the lack of “formal assessment of cognitive 17 status.” (1236.) Dr. Coughlin introduced a new basis for rejecting Plaintiff’s claims, 18 stating that Plaintiff’s “current lack of capacity opined by Dr. Mitchell” was 19 unsupported “because the level of current intervention [was] inconsistent with the 20 severity” of Plaintiff’s subjective complaints.13 (1236.) Thus, Dr. Coughlin assessed 21 Plaintiff’s disability based on the supposed failure of his treatment providers to order 22 more aggressive treatment, which seems at best a tenuous basis on which to make any 23 conclusion regarding whether Plaintiff’s stated R&Ls were supported. (1236.) But 24 Dr. Coughlin’s lack of elaboration strips this statement of any persuasive value: Here, 25 there is no indication of what treatment Dr. Coughlin felt should have been pursued, 26 27 28 13 Unum ultimately relied on this conclusion in denying Plaintiff’s claim. (1249 (“[N]either you nor your providers . . . have suggested or insisted that there be a more comprehensive structured evaluation of your neurocognitive function.”).) 38 1 or why he felt such treatment should have been pursued; moreover, there is no 2 indication as to whether Plaintiff’s treatment providers considered (and/or rejected) 3 more aggressive treatment. 4 5 Therefore, the Court’s is not persuaded by the opinions of any of these three file reviewers. 2. 6 7 Plaintiff’s Appeal After Plaintiff’s counsel filed his appeal, Unum sought review from three other 8 doctors, Drs. Crawford, Black, and Brown. The Court is also not persuaded by their 9 opinions. First, Dr. Crawford’s opinion fails to take into account important medical 10 evidence; second, Dr. Black’s criticisms of Dr. Lewis’s stated assumptions are 11 unpersuasive; finally, Dr. Brown’s opinion builds in part on Dr. Crawford’s and Dr. 12 Black’s faulty foundations and is, in any event, refuted by Dr. Sosin’s and Dr. Lewis’s 13 reports. 14 15 a. Dr. Crawford Dr. Crawford observed that continued expressive aphasia was not consistent 16 with what would be anticipated based on “the mechanism of injury,” Plaintiff’s 17 normal neurological exams, and his unremarkable CT scans. She explained that 18 “[n]eurological deficits are maximal in the hours and days after a brain injury,” before 19 going on to note that Plaintiff did not demonstrate evidence of aphasia in that time 20 frame, citing Plaintiff’s visits to an urgent care facility on the day of the accident, and 21 a visit to the ER less than a week after the accident. But Dr. Crawford’s citation to the 22 medical evidence is selective, and the evidence of record in fact shows Plaintiff 23 consistently complained of aphasia and other cognitive deficits in the days, weeks, and 24 months following the accident. 25 On the day of the accident, Plaintiff complained to Dr. Wilder that he “lost [his] 26 train of thought.” (368.) And as for the ER visit six days later, although Dr. Crawford 27 correctly quoted the Hoag Memorial physical exam notes as stating “[n]o aphasia,” 28 this note reflects only that the doctor examining Plaintiff did not observe any aphasia. 39 1 (See 731 (making this notation under the heading (“Physical Exam: Neurological:”).) 2 The notes from that ER visit reveal two other notations reflecting Plaintiff’s 3 complaints of aphasia. (717 (upon presentation, Plaintiff complained of “losing his 4 train of thought mid-sentence”); 730 (Plaintiff recounted that he had to leave a 5 meeting at work three days earlier “because he was . . . having trouble finding 6 words”).) And in between the urgent care visit and the ER visit, four days after the 7 accident, Dr. Sosin noted that Plaintiff told him that “[h]e . . . had felt foggy, not 8 remembering what he was saying by mid-sentence.” (1403.) Indeed, as recounted in 9 detail herein, the record shows that Plaintiff made consistent complaints of this type in 10 11 the days, weeks, and months after the accident. Additionally, Dr. Crawford chose not to comment on the available objective 12 data: Although Dr. Crawford noted the availability of Dr. Lewis’s neuropsychological 13 report and raw test data, she made no attempt to reconcile her conclusions with the 14 results of the testing. (2071.) This failure further evidences Dr. Crawford’s arbitrary 15 selectivity and further weakens her opinion. b. 16 17 Dr. Black As for Dr. Black’s review, the Court observes at the outset that he was not 18 asked to comment on Plaintiff’s ability to perform his regular occupation; therefore, 19 he does not tie his assessment to Plaintiff’s job duties. (Compare 2350 (asking 20 “[w]hat cognitive function is demonstrated in the neuropsychological testing?”) with 21 2352 (answering that question without reference to the duties of Plaintiff’s regular 22 occupation).) Instead, because Dr. Black was specifically asked to comment on the 23 neuropsychological testing, his review focused primarily on Dr. Lewis’s report and 24 testing. 25 Within that focus, Dr. Black first criticized what he saw as Dr. Lewis’s 26 incorrect assumptions regarding the level of Plaintiff’s baseline, pre-accident 27 cognitive functioning. (2351 (Dr. Black); cf. 1361 (Dr. Lewis).) Dr. Lewis estimated 28 Plaintiff’s baseline, pre-accident intellect to be in the Superior to Very Superior range, 40 1 corresponding to an intelligence quotient level of 125 to 130 or higher. (1361.) 2 Conversely, Dr. Black used “standard statistical estimation methods” to estimate 3 Plaintiff’s baseline at a lower mark, thus showing a lesser decline, and noting only 4 “mildly lower than predicted” functioning in “many domains, primarily Attention, 5 aspects of Learning and Memory, Processing Speed, and aspects of Executive 6 Functioning.” (2351.) 7 However, for three reasons, the Court credits Dr. Lewis’s baseline estimate of 8 Plaintiff’s pre-accident cognitive functioning over Dr. Black’s estimate: First, 9 Plaintiff’s career experience (as set forth in his resume), second, subjective accounts 10 of others who observed him before and after the accident (including his employer and 11 two treating physicians), and third, Plaintiff’s scores in areas of cognition that tend to 12 survive traumatic brain injury. 13 More specifically, first, even assuming Dr. Lewis relied on Plaintiff’s 14 recounting of his SAT and GMAT scores from the late 1970s and early 1980s rather 15 than documentary evidence of those scores, the record is clear that Plaintiff’s GMAT 16 score was high enough for him to be admitted to Columbia University’s Graduate 17 School of Business, where he earned a Master’s Degree. (1378.) Thereafter, Plaintiff 18 went on to work for a number of major corporations, holding various positions with 19 titles such as product director, marketing director, business director, general manager, 20 chief marketing officer, vice-president, president, and chief executive officer, before 21 going on to serve on a corporate board of directors and running a consulting business. 22 (1375-78.) Only after working in all these positions did Plaintiff become an executive 23 recruiter. (1375.) This career path strongly supports the accuracy of Dr. Lewis’s 24 estimate in the Superior to Very Superior range of intellect. 25 Second, Dr. Lewis’s baseline estimate is also supported by Plaintiff’s 26 employer’s account of Plaintiff’s functioning before the accident and his decline after 27 the accident. The same is true of the observations of Plaintiff’s treating physicians, 28 Drs. Mitchell and Sosin, who treated him before and after the accident. 41 1 Finally, Dr. Lewis noted that Plaintiff’s high score in Verbal Comprehension 2 tended to confirm her baseline estimate. Plaintiff scored in the 95th percentile in this 3 area, which Dr. Lewis observed “tend[s] to remain the most robust in the face of most 4 types of cognitive functioning deficits, such as those sustained in a motor vehicle 5 accident.” (1361.) She explained that “[a]s a result[,] these tasks tend to be good 6 predictors of pre-morbid intellect, and, thus, are consistent with this examiner’s 7 interpretation of pre-morbid intellect being very high, in the Superior to Very Superior 8 Range.” (1361.) Despite his other criticisms, Dr. Black does not dispute this 9 observation. 10 For all these reasons, the Court credits Dr. Lewis’s estimate as an accurate 11 measure of Plaintiff’s baseline, pre-accident intellectual functioning. The pre-accident 12 estimate of Plaintiff’s intellect was not the only disagreement between Drs. Black and 13 Lewis. They also disagreed on how the “practice effect” may have influenced 14 Plaintiff’s test results. 15 Dr. Lewis was of the opinion that Plaintiff’s performance was enhanced by the 16 practice effect, that is, as the result of Plaintiff having taken the same or similar 17 neuropsychological tests (administered by Dr. McGee) three months prior to Dr. 18 Lewis’s testing. (1360-1362, 1364-65.) Thus, she believed that Plaintiff’s deficits 19 may have been understated by the test results that included artificially inflated scores. 20 (1360.) Dr. Black acknowledged that the practice effect could have influenced the test 21 results, but he believed that if it did, this would actually be an indication of the lack of 22 severity of Plaintiff’s impairment, noting that it would “indicate[] memory that is 23 adequate for learning specific test items . . . and remembering the items over a three 24 month period,” especially given that Plaintiff would have been unaware of any need to 25 remember the information (and thus unlikely to make a special effort to remember it). 26 (2351.) Both of these conflicting opinions are plausible; as such, neither is 27 particularly persuasive. There is simply no evidence suggesting one conclusion is 28 more sound than the other. As it is, both Dr. Lewis and Dr. Black agree the test 42 1 results were valid based on built-in measures of validity, and as explained at length 2 herein, those results, considered with the other evidence of record, support the finding 3 that Plaintiff is unable to perform the substantial and material duties of his regular 4 occupation due to cognitive deficits. c. 5 Dr. Brown As to Dr. Brown’s review, the Court notes at the outset that he relied on Dr. 6 7 Crawford’s analysis of Plaintiff’s “neurological condition and associated level of 8 function” and Dr. Black’s conclusion that the “[t]esting results indicate, at most, mild 9 impairment” (2364-65); therefore, to extent these analyses factor into Dr. Brown’s 10 opinion, it suffers from the same weaknesses as do Dr. Crawford’s and Dr. Black’s. 11 More substantively, Dr. Brown saw Plaintiff’s cognitive impairments as an 12 exacerbation of a preexisting chronic psychiatric condition, presumably ADD, a 13 condition that would “benefit from on-going treatment.” (2364.) But Dr. Sosin 14 considered this issue and saw a clear differentiation between Plaintiff’s ADD and his 15 impairment as a result of the accident. (1405.) Dr. Sosin noted that because he 16 treated Plaintiff before and after the accident, he was able to “make a comparison of 17 his symptoms which were attributed to ADD [and the] impairment caused by the 18 accident,” opining that although “there can be some overlap between symptoms of 19 ADD and those attributed to post-concussion syndrome,” in Plaintiff’s “case, there 20 [was] a clear differentiation between his ADD symptoms and those of his post- 21 concussion syndrome.”14 (1405.) Despite having Dr. Sosin’s report, Dr. Brown did 22 not discuss Dr. Sosin’s remarks regarding this “clear differentiation.” (2364.) And 23 Dr. Brown himself acknowledged that Plaintiff had “a long-standing psychiatric 24 condition,” which gave him a “significantly higher risk of having persistent cognitive, 25 affective and somatic symptoms after a comparatively mild head injur[y].” (2364.) 26 14 27 28 In interpreting Plaintiff’s test results, Dr. Lewis agreed. She concluded that the deficits revealed by Plaintiff’s test results were beyond those that would be expected as a result of ADD. (1368 (noting that “[t]he deficits that are discussed are far greater than can be accounted for by an attention deficit hyperactivity disorder”).) 43 1 In light of these weaknesses, the opinions of Unum’s three file reviewer 2 conclusions on appeal do not suggest to the Court that Plaintiff has failed to meet his 3 burden of proof that he is disabled or that he remains able to perform the material and 4 substantial duties of his regular occupation. On these findings of fact, therefore, the Court makes the conclusions of law set 5 6 forth in the next section. 7 IV. 8 9 CONCLUSIONS OF LAW The Policy at issue is an “employee welfare benefit plan” governed by ERISA. See 29 U.S.C. § 1002(1). 10 Plaintiff has met his burden to establish by a preponderance of the evidence that 11 he continued to be “disabled” from performing the “material and substantial duties” of 12 his “regular occupation” due to “sickness or injury,” as defined by the Policy, after the 13 date Unum discontinued his LTD benefits. Therefore, Unum’s denial of his claim is 14 overturned. 15 Because the administrator “applied the right standard, but came to the wrong 16 conclusion” regarding whether Plaintiff was disabled from his “regular occupation,” 17 the appropriate remedy for the time remaining in the “regular occupation” eligibility 18 period is “[r]etroactive reinstatement of benefits.” Grosz-Salomon v. Paul Revere Life 19 Ins. Co., 237 F.3d 1154, 1163 (9th Cir. 2001). Accordingly, the Court orders that 20 Plaintiff be paid benefits under the terms of the Policy for the remainder of the 21 approximately twelve months of the “regular occupation” standard of determining 22 disability. 23 For the time period after that, because Unum has not yet considered the relevant 24 standard, the appropriate remedy is to remand to the administrator to consider whether 25 Plaintiff is “disabled” under the “any gainful occupation” standard in the Policy that 26 applies after the first 24 months of disability. See Saffle v. Sierra Pac. Power Co. 27 Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 460 (9th Cir. 1996) 28 (holding it was error for the district court to order payments beyond the initial 2444 1 month disability period where the standard for determining disability changed after 2 the 24-month mark); see, e.g., Carey v. United of Omaha Life Ins. Co., No. 3 SACV1300740CJCAJWX, 2017 WL 1045077, at *11 (C.D. Cal. Jan. 31, 2017) 4 (citing Saffle and holding that remand to the plan administrator was appropriate 5 remedy to consider whether the plaintiff was disabled under the “any gainful 6 occupation” standard); Hantakas v. Metro. Life Ins. Co., No. 214CV00235TLNKJN, 7 2016 WL 374562, at *7 (E.D. Cal. Feb. 1, 2016) (same); Wilkins v. Unum Life Ins. 8 Co. of Am., No. CV 10-02940 JSW, 2013 WL 5340512, at *5 (N.D. Cal. Sept. 24, 9 2013) (same). 10 11 V. CONCLUSION As set forth herein, the Court awards benefits to Plaintiff for the remainder of 12 the approximately twelve months of the “regular occupation” standard of determining 13 disability. The Court remands the matter to the claims administrator to consider 14 whether Plaintiff meets the definition of “disabled” under the definition that applies 15 after the first twenty-four months. 16 Plaintiff shall prepare and lodge a proposed judgment within fourteen days of 17 the entry of this Order. Any objections to the judgment must be filed within seven 18 days thereafter. 19 In accordance with the Court’s Local Rule 54-7, any motion for attorney fees 20 shall be filed no later than fourteen days after the Court’s entry of judgment and shall 21 be noticed for the Court’s first available motions hearing date. This deadline may be 22 extended by stipulation of the parties. 23 IT IS SO ORDERED. 24 DATED: March 22, 2021 25 26 27 _________________________________ The Hon. Josephine L. Staton United States District Judge 28 45

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